Exhibit 4.1
================================================================================
▇▇▇▇▇ ASSET SECURITIZATION, INC.,
as Depositor
MAIA MORTGAGE FINANCE STATUTORY TRUST
as Seller
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator and as Master Servicer
and
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
----------
POOLING AGREEMENT
Dated as of September 1, 2006
----------
Luminent Mortgage Trust 2006-6
Mortgage Pass-Through Certificates, Series 2006-6
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND INTERPRETATION 10
SECTION 1.01 Definitions.............................................. 10
SECTION 1.02 Calculations With Respect to the Mortgage Loans.......... 50
SECTION 1.03 Calculations With Respect to Accrued Interest............ 50
SECTION 1.04 Rules of Construction.................................... 50
ARTICLE II CONVEYANCE OF MORTGAGE LOANS 51
SECTION 2.01 Conveyance of Mortgage Loans to the Depositor............ 51
SECTION 2.02 Conveyance of Mortgage Loans to the Issuing Entity....... 52
SECTION 2.03 Assignment of Mortgage Loans............................. 53
SECTION 2.04 Books and Records........................................ 53
SECTION 2.05 Review of Documentation.................................. 54
SECTION 2.06 Execution and Delivery of Certificates................... 55
SECTION 2.07 Representations and Warranties of the Seller with
Respect to the Mortgage Loans............................ 55
SECTION 2.08 Repurchase Obligation.................................... 57
SECTION 2.09 Repurchase of Mortgage Loans............................. 57
SECTION 2.10 Substitution of Mortgage Loans........................... 57
SECTION 2.11 Granting Clause.......................................... 59
SECTION 2.12 Purpose.................................................. 61
ARTICLE III REPRESENTATIONS AND WARRANTIES 61
SECTION 3.01 Representations and Warranties of the Seller............. 61
SECTION 3.02 Representations and Warranties of the Depositor.......... 63
SECTION 3.03 Representations and Warranties of the Master Servicer
and Securities Administrator............................. 64
ARTICLE IV REPORTS 66
SECTION 4.01 Annual Assessment of Compliance.......................... 66
SECTION 4.02 Annual Compliance Statement.............................. 67
SECTION 4.03 Attestation Report....................................... 68
SECTION 4.04 Back-Up Certification.................................... 68
SECTION 4.05 Commission Reporting..................................... 69
SECTION 4.06 Distribution Date Report................................. 74
SECTION 4.07 [Reserved]............................................... 77
SECTION 4.08 Additional Information................................... 77
SECTION 4.09 Intention of the Parties and Interpretation.............. 77
SECTION 4.10 Indemnification.......................................... 77
ARTICLE V MASTER SERVICER 78
SECTION 5.01 Duties of the Master Servicer............................ 78
i
TABLE OF CONTENTS
Page
----
SECTION 5.02 Assignment or Delegation of Duties by the Master
Servicer................................................. 79
SECTION 5.03 Fidelity Bond and Errors and Omission Policy............. 79
SECTION 5.04 Compensation to the Master Servicer...................... 80
SECTION 5.05 Merger or Consolidation.................................. 80
SECTION 5.06 Examination Rights....................................... 80
SECTION 5.07 Resignation of Master Servicer........................... 81
SECTION 5.08 Master Servicer to Act as Servicer; Appointment of
Successor................................................ 81
SECTION 5.09 Master Servicer Events of Default; Appointment of
Successor................................................ 83
SECTION 5.10 Waiver of Defaults....................................... 86
SECTION 5.11 Notification of Master Servicer Default.................. 86
SECTION 5.12 Limitation on Liability of the Master Servicer........... 87
SECTION 5.13 Master Servicer Covenants................................ 87
SECTION 5.14 Maintenance of Hazard Insurance and Other Insurance...... 88
SECTION 5.15 Indemnification.......................................... 89
SECTION 5.16 Opinion.................................................. 89
SECTION 5.17 Realization Upon Defaulted Mortgage Loans; REO Property.. 89
ARTICLE VI THE SECURITIES ADMINISTRATOR 90
SECTION 6.01 Duties of the Securities Administrator................... 91
SECTION 6.02 Records.................................................. 92
SECTION 6.03 Compensation............................................. 92
SECTION 6.04 No Joint Venture......................................... 92
SECTION 6.05 Other Activities of Securities Administrator and the
Depositor................................................ 92
SECTION 6.06 Certain Matters Affecting the Securities Administrator... 92
SECTION 6.07 Securities Administrator Not Liable for Certificates or
Mortgage Loans........................................... 94
SECTION 6.08 Securities Administrator May Own Certificates............ 94
SECTION 6.09 Eligibility Requirements for the Securities Administrator 94
SECTION 6.10 Resignation and Removal of the Securities Administrator.. 94
SECTION 6.11 Successor Securities Administrator....................... 95
SECTION 6.12 Merger or Consolidation of Securities Administrator...... 96
SECTION 6.13 Limitation of Liability.................................. 96
SECTION 6.14 Opinion.................................................. 97
ARTICLE VII CONCERNING THE TRUSTEE 97
SECTION 7.01 Duties of Trustee........................................ 97
SECTION 7.02 Rights of Trustee........................................ 98
SECTION 7.03 Trustee Not Liable for Certificates...................... 99
SECTION 7.04 Trustee May Own Certificates............................. 100
SECTION 7.05 Eligibility Requirements for Trustee..................... 100
SECTION 7.06 Resignation and Removal of Trustee....................... 100
SECTION 7.07 Successor Trustee........................................ 101
SECTION 7.08 Merger or Consolidation of Trustee....................... 102
SECTION 7.09 Appointment of Co-Trustee or Separate Trustee............ 102
SECTION 7.10 Indemnification of Trustee............................... 103
ii
TABLE OF CONTENTS
Page
----
SECTION 7.11 Fees and Expenses of Trustee............................. 104
ARTICLE VIII TRUST ADMINISTRATION 104
SECTION 8.01 Distribution Account..................................... 104
SECTION 8.02 Reserve Account.......................................... 106
SECTION 8.03 Calculation of LIBOR..................................... 108
SECTION 8.04 Supplemental Interest Trust.............................. 109
SECTION 8.05 Priorities of Distribution............................... 111
SECTION 8.06 Allocation of Realized Losses............................ 116
SECTION 8.07 REMIC Distributions...................................... 117
SECTION 8.08 Indemnification.......................................... 120
ARTICLE IX THE CERTIFICATES 121
SECTION 9.01 The Certificates......................................... 121
SECTION 9.02 Certificate Register; Registration of Transfer and
Exchange of Certificates................................. 121
SECTION 9.03 Mutilated, Destroyed, Lost or Stolen Certificates........ 126
SECTION 9.04 Persons Deemed Owners.................................... 127
SECTION 9.05 Access to List of Certificateholders' Names and
Addresses................................................ 127
SECTION 9.06 Maintenance of Office or Agency.......................... 127
SECTION 9.07 Limitation on Rights of Holders.......................... 127
SECTION 9.08 Acts of Holders of Certificates.......................... 128
ARTICLE X THE DEPOSITOR 129
SECTION 10.01 Liabilities of the Depositor............................. 129
SECTION 10.02 Merger or Consolidation of the Depositor................. 129
SECTION 10.03 Limitation on Liability of the Depositor and Others...... 129
ARTICLE XI TERMINATION 130
SECTION 11.01 Termination upon Liquidation or Purchase of all
Mortgage Loans........................................... 130
SECTION 11.02 Final Distribution on the Certificates................... 131
SECTION 11.03 Additional Termination Requirements...................... 132
ARTICLE XII REMIC ADMINISTRATION 133
SECTION 12.01 REMIC Administration..................................... 133
SECTION 12.02 Prohibited Transactions and Activities................... 135
SECTION 12.03 Indemnification with Respect to Prohibited Transactions
or Loss of REMIC Status.................................. 135
ARTICLE XIII AMENDMENT 136
SECTION 13.01 Without Consent of the Certificateholders................ 136
SECTION 13.02 With Consent............................................. 137
iii
TABLE OF CONTENTS
Page
----
SECTION 13.03 Procedure and Notice..................................... 137
ARTICLE XIV MISCELLANEOUS PROVISIONS 138
SECTION 14.01 Binding Nature of Agreement; Assignment.................. 138
SECTION 14.02 Entire Agreement......................................... 138
SECTION 14.03 Counterparts............................................. 138
SECTION 14.04 Provision of Information................................. 138
SECTION 14.05 Governing Law............................................ 138
SECTION 14.06 Notices.................................................. 139
SECTION 14.07 Severability of Provisions............................... 140
SECTION 14.08 No Waivers............................................... 140
SECTION 14.09 Headings Not to Affect Interpretation.................... 141
SECTION 14.10 No Petitions............................................. 141
SECTION 14.11 Certificates Fully Paid and Nonassessable................ 141
SECTION 14.12 Protection of Assets..................................... 141
SECTION 14.13 Third Party Beneficiary.................................. 141
iv
EXHIBITS
Exhibit A-1 Form of Class A Certificate
Exhibit A-2 Form of Class B Certificate
Exhibit A-3 Form of Class C Certificate
Exhibit A-4 Form of Residual Certificate
Exhibit B Information Fields for Mortgage Loan Schedule
Exhibit C Contents of each Mortgage File
Exhibit D Form of Request for Release
Exhibit E Form of Transferor Certificate
Exhibit F-1 Form of Investment Letter (Non-Rule 144A)
Exhibit F-2 Form of Investment Letter (Rule 144A)
Exhibit G Form of Benefit Plan Affidavit
Exhibit H Form of Affidavit Regarding Transfer of Residual Certificate
Exhibit I Additional Form 10-D Disclosure
Exhibit J Additional Form 10-K Disclosure
Exhibit K Additional Form 8-K Disclosure
Exhibit L Additional Disclosure Notification
Exhibit M-1 Form of Schedule to Cap Agreement
Exhibit M-2 Form of Confirmation to Cap Agreement
Exhibit 1122 Servicing Criteria
Exhibit SOX Sarbanes Oxley Certificate
SCHEDULES
Schedule A Mortgage Loan Schedule
v
This POOLING AGREEMENT, dated as of September 1, 2006, is by and among
▇▇▇▇▇ ASSET SECURITIZATION, INC., a Delaware corporation, as depositor (the
"Depositor"), MAIA MORTGAGE FINANCE STATUTORY TRUST, a Maryland business trust,
as seller (the "Seller"), ▇▇▇▇▇ FARGO BANK, N.A., a national banking
association, as securities administrator (the "Securities Administrator") and as
master servicer (the "Master Servicer"), and HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
WHEREAS, the Seller seeks to sell to the Depositor and the Depositor seeks
to purchase from the Seller all of the right, title and interest of the Seller
in certain adjustable-rate first lien Mortgage Loans and fixed-rate first lien
Mortgage Loans identified in Schedule A hereto on a servicing-released basis
pursuant to this Agreement;
WHEREAS, the Seller will make representations and warranties as set forth
herein with respect to the Mortgage Loans and will assign to the Depositor
certain representations and warranties that the Seller has received with respect
to such Mortgage Loans;
WHEREAS, at the Closing Date the Depositor will be the owner of the
Mortgage Loans and the other property being conveyed and assigned by it to the
Issuing Entity hereunder for inclusion in the Trust Fund on the Closing Date;
WHEREAS, on the Closing Date, the Depositor will transfer to the Issuing
Entity the Mortgage Loans and the other property constituting the Trust Fund,
and the Issuing Entity will issue the Certificates evidencing the entire
interest in the Issuing Entity;
WHEREAS, the Depositor will receive the Certificates in consideration for
the Mortgage Loans and other property being conveyed and assigned by it to the
Issuing Entity and will sell the Certificates to various purchasers.
WHEREAS, various servicers are servicing the Mortgage Loans pursuant to
various Servicing Agreements, each Servicer is willing to service the Mortgage
Loans for the benefit of the Issuing Entity;
WHEREAS, the Master Servicer is willing to master service the Mortgage
Loans for the benefit of the Issuing Entity;
WHEREAS, the Securities Administrator is willing to provide certain
services and reports with respect to the Certificates;
WHEREAS, the Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple Classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Trust Fund created hereunder. The Certificates will consist of fourteen
Classes of Certificates, designated as (i) the Class A-1, Class A-2A, Class
▇-▇▇, ▇▇▇▇▇ ▇-▇, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7, Class B-8 and Class B-9 Certificates and (ii) the Class C
Certificates; and
1
WHEREAS, the descriptions of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC
V and REMIC VI that follow are part of the Preliminary Statement. Any
inconsistencies or ambiguities in this Agreement or in the administration of
this Agreement shall be resolved pursuant to the terms of Article XIII in a
manner that preserves the validity of such REMIC elections described below.
2
REMIC I
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement (but exclusive of the Reserve Account,
the Cap Account, the Non-Mortgagor Prepayment Premium Payment Amount, the
Supplemental Interest Trust and the Cap Agreement) as a real estate mortgage
investment conduit (a "REMIC") for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC I." The Class R-I
Interest will represent the sole class of "residual interests" in REMIC I for
purposes of the REMIC Provisions. The following table irrevocably sets forth the
designation, the Uncertificated REMIC I Pass-Through Rate, the initial
Uncertificated Principal Balance, and solely for purposes of satisfying Treasury
Regulations Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the Uncertificated REMIC I Regular Interests. None of the Uncertificated
REMIC I Regular Interests will be certificated.
Initial
Uncertificated REMIC I Uncertificated Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date(1)
----------- ---------------------- ----------------- ----------------
LTAA Variable(2) $757,277,664.78 October 25, 2046
LTA1 Variable(2) $ 4,277,100.00 October 25, 2046
LTA2A Variable(2) $ 500,000.00 October 25, 2046
LTA2B Variable(2) $ 1,638,500.00 October 25, 2046
LTA3 Variable(2) $ 712,860.00 October 25, 2046
LTB1 Variable(2) $ 142,960.00 October 25, 2046
LTB2 Variable(2) $ 108,180.00 October 25, 2046
LTB3 Variable(2) $ 42,500.00 October 25, 2046
LTB4 Variable(2) $ 73,410.00 October 25, 2046
LTB5 Variable(2) $ 38,640.00 October 25, 2046
LTB6 Variable(2) $ 38,640.00 October 25, 2046
LTB7 Variable(2) $ 38,640.00 October 25, 2046
LTB8 Variable(2) $ 46,360.00 October 25, 2046
LTB9 Variable(2) $ 23,180.00 October 25, 2046
LTZZ Variable(2) $ 7,773,676.22 October 25, 2046
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC I
Pass-Through Rate" herein.
3
REMIC II
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Uncertificated REMIC I Regular
Interests as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC II." The Class R-II Interest will
represent the sole class of "residual interests" in REMIC II for purposes of the
REMIC Provisions. The following table irrevocably sets forth the designation,
the Pass-Through Rate, the initial Certificate Principal Balance or
Uncertificated Principal Balance, as the case may be and solely for purposes of
satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the "latest
possible maturity date" for each of the Classes of Certificates and
Uncertificated REMIC II Regular Interests.
Initial Certificate
Principal or
Uncertificated Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date(1)
----------- ----------------- ------------------- ----------------
A-1 Variable(2) $ 4,277,100.00 October 25, 2046
A-2A Variable(2) $ 50,000,000.00 October 25, 2046
A-2B Variable(2) $163,850,000.00 October 25, 2046
A-3 Variable(2) $ 71,286,000.00 October 25, 2046
B-1 Variable(2) $ 14,296,000.00 October 25, 2046
B-2 Variable(2) $ 10,818,000.00 October 25, 2046
B-3 Variable(2) $ 4,250,000.00 October 25, 2046
B-4 Variable(2) $ 7,341,000.00 October 25, 2046
B-5 Variable(2) $ 3,864,000.00 October 25, 2046
B-6 Variable(2) $ 3,864,000.00 October 25, 2046
B-7 Variable(2) $ 3,864,000.00 October 25, 2046
B-8 Variable(2) $ 4,636,000.00 October 25, 2046
B-9 Variable(2) $ 2,318,000.00 October 25, 2046
C Variable(3) $ (3) October 25, 2046
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each Class of Certificates that
represents one or more of the "regular interests" in REMIC II and each
Uncertificated REMIC II Regular Interest.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
(3) The Class C Interest (i) will have an initial Uncertificated Principal
Balance equal to the initial Overcollateralization Amount and (ii) will
bear interest at its variable Pass-Through Rate on the Notional Amount of
the Class C Interest outstanding from time to time. The Class C Interest
will not accrue interest on its Uncertificated Principal Balance.
4
REMIC III
As provided herein, the Securities Administrator shall elect to treat the
segregated pool of assets consisting of the Class B-7 Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III." The Class RX-III Interest represents the sole class
of "residual interests" in REMIC III for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Certificate Principal Balance for the Class B-7
Certificates that represents a "regular interest" in REMIC III created
hereunder:
Pass-Through Initial Certificate Latest Possible
Class Designation Rate Principal Balance Maturity Date(1)
--------------------- ------------ ------------------- ----------------
Class B-7 Certificate Variable(2) $3,864,000.00 October 25, 2046
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for the Class B-7 Certificates.
(2) The Class B-7 Certificates will receive 100% of amounts received in respect
of the Class B-7 Interest.
5
REMIC IV
As provided herein, the Securities Administrator shall elect to treat the
segregated pool of assets consisting of the Class B-8 Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC IV." The Class RX-IV Interest represents the sole class of
"residual interests" in REMIC IV for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Certificate Principal Balance for the Class B-8
Certificates that represents a "regular interest" in REMIC IV created hereunder:
Pass-Through Initial Certificate Latest Possible
Class Designation Rate Principal Balance Maturity Date(1)
--------------------- ------------ ------------------- ----------------
Class B-8 Certificate (2) $4,636,000.00 October 25, 2046
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for the Class B-8 Certificates.
(2) The Class B-8 Certificates will receive 100% of amounts received in respect
of the Class B-8 Interest.
6
REMIC V
As provided herein, the Securities Administrator shall elect to treat the
segregated pool of assets consisting of the Class B-9 Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC V." The Class RX-V Interest represents the sole class of
"residual interests" in REMIC V for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Certificate Principal Balance for the Class B-9
Certificates that represents a "regular interest" in REMIC IV created hereunder:
Pass-Through Initial Certificate Latest Possible
Class Designation Rate Principal Balance Maturity Date(1)
--------------------- ------------ ------------------- ----------------
Class B-9 Certificate (2) $2,318,000.00 October 25, 2046
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for the Class B-9 Certificates.
(2) The Class B-9 Certificates will receive 100% of amounts received in respect
of the Class B-9 Interest.
7
REMIC VI
As provided herein, the Securities Administrator shall elect to treat the
segregated pool of assets consisting of the Class C Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC VI." The Class RX-VI Interest represents the sole class of
"residual interests" in REMIC VI for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Certificate Principal Balance for the Class C
Certificates that represents a "regular interest" in REMIC III created
hereunder:
Pass-Through Initial Certificate Latest Possible
Class Designation Rate Principal Balance Maturity Date(1)
--------------------- ------------ ------------------- ----------------
Class C Certificate Variable(2) N/A October 25, 2046
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for the Class C Certificates.
(2) The Class C Certificates will receive 100% of amounts received in respect
of the Class C Interest.
NOW THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
8
SUMMARY OF CERTIFICATES
The following table sets forth characteristics of the Certificates, together
with the minimum denominations and integral multiples in excess thereof in which
the Classes of Certificates shall be issuable:
INITIAL
CLASS INTEGRAL
PRINCIPAL PASS-THROUGH RATE PASS-THROUGH RATE MULTIPLES IN
BALANCE OR (UNTIL OPTIONAL (AFTER OPTIONAL MINIMUM EXCESS OF
CLASSES NOTIONAL AMOUNT TERMINATION DATE) TERMINATION DATE) DENOMINATION MINIMUM
---------- --------------- ----------------- ----------------- ------------ ------------
Class A-1 $427,710,000 LIBOR + 0.200%(2) LIBOR + 0.400%(2) $100,000 $1
Class A-2A $ 50,000,000 LIBOR + 0.170%(1) LIBOR + 0.340%(1) $100,000 $1
Class A-2B $163,850,000 LIBOR + 0.240%(2) LIBOR + 0.480%(2) $100,000 $1
Class A-3 $ 71,286,000 LIBOR + 0.280%(2) LIBOR + 0.560%(2) $100,000 $1
Class B-1 $ 14,296,000 LIBOR + 0.380%(2) LIBOR + 0.570%(2) $100,000 $1
Class B-2 $ 10,818,000 LIBOR + 0.410%(2) LIBOR + 0.615%(2) $100,000 $1
Class B-3 $ 4,250,000 LIBOR + 0.440%(2) LIBOR + 0.660%(2) $100,000 $1
Class B-4 $ 7,341,000 LIBOR + 0.550%(2) LIBOR + 0.825%(2) $100,000 $1
Class B-5 $ 3,864,000 LIBOR + 0.600%(2) LIBOR + 0.900%(2) $100,000 $1
Class B-6 $ 3,864,000 LIBOR + 0.670%(2) LIBOR + 1.005%(2) $100,000 $1
Class B-7 $ 3,864,000 LIBOR + 1.500%(2) LIBOR + 2.250%(2) $100,000 $1
Class B-8 $ 4,636,000 LIBOR + 1.500%(2) LIBOR + 2.250%(2) $100,000 $1
Class B-9 $ 2,318,000 LIBOR + 1.500%(2) LIBOR + 2.250%(2) $100,000 $1
Class C $ 4,635,311(3) (4) (4) $100,000 $1
(1) The Class A-2A certificates are subject to a cap, as discussed in footnote
(2), but have the benefit of an Cap Agreement intended to pay
certificateholders on each distribution date the difference, if any,
between LIBOR plus the applicable margin and the adjusted weighted average
of the net loan rates (adjusted to account for negative amortization on the
mortgage loans in excess of the principal distribution amount).
(2) Subject to a maximum interest rate equal to a cap based on weighted average
of the net loan rates of the mortgage loans, adjusted for the related
accrual period.
(3) Initial overcollateralization amount.
(4) As defined herein.
9
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Section 1.01.
Accepted Master Servicing Practices: With respect to any Mortgage Loan, those
customary mortgage loan master servicing practices of prudent mortgage servicing
institutions that master service Mortgage Loans of the same type and quality as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property is
located, to the extent applicable to the Master Servicer, and in accordance with
the applicable state, local and federal laws, rules and regulations.
Accountant: A person engaged in the practice of accounting who (except when this
Agreement provides that an Accountant must be Independent) may be employed by or
affiliated with a party hereto or an Affiliate thereof.
Accrued Certificate Interest: For any Distribution Date for the Class A
Certificates and Class B Certificates, interest accrued during the related
Accrual Period at the then-applicable Pass-Through Rate on the related
Certificate Principal Balance thereof immediately prior to such Distribution
Date, plus any Accrued Certificate Interest remaining unpaid from any prior
Distribution Date (other than because of the Adjusted Net WAC Rate) with
interest thereon at the related Pass-Through Rate.
Accrual Period: With respect to any Distribution Date and each Class of
Certificates (other than the Class C Certificates) and the Uncertificated REMIC
II Regular Interests (other than the Class C Interest), the period commencing on
the Distribution Date in the month immediately preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date, the
Closing Date) and ending on the close of business on the calendar day
immediately preceding such Distribution Date. With respect to any Distribution
Date and the Class C Certificates, the Class C Interest and the REMIC I Regular
Interests, the one month period ending on the last day of the calendar month
immediately preceding the month in which such Distribution Date occurs.
Additional Disclosure Notification: As defined in Section 4.05(a)(i).
Additional Form 10-D Disclosure: As defined in Section 4.05(a)(i).
Additional Form 10-K Disclosure: As defined in Section 4.05(a)(ii).
Additional Negative Amortization Amount: For any Distribution Date, the amount
of Deferred Interest related to the Mortgage Loans during the related Due Period
that is in excess of the Principal Remittance Amount (calculated without
reference to any reduction in respect of any such Deferred Interest) for such
Distribution Date.
Additional Negative Amortization Carryover Amount: For any Distribution Date,
for the REMIC regular interest portion of the Class A-2A Certificates for the
benefit of the Cap Provider if the Cap Agreement is in effect, the Class A
Certificates (including the Class A-2A Certificates
10
if the Cap Agreement is not in effect) and the Class B Certificates, the sum of
(a) the excess of (x) Accrued Certificate Interest for such Distribution Date on
the related class of Certificates over (y) the Adjusted Accrued Certificate
Interest for such Distribution Date and (b) any Additional Negative Amortization
Carryover Amount remaining unpaid from prior Distribution Dates with interest
thereon at the applicable Pass-Through Rate for the related Accrual Period, to
the extent previously unreimbursed by Excess Cash Flow.
Adjustable Rate Mortgage Loans: Mortgage Loans that contain a provision pursuant
to which the mortgage rate is adjusted periodically, as identified on the
Mortgage Loan Schedule.
Adjusted Accrued Certificate Interest: For any Distribution Date for the Class A
and Class B Certificates, the related Accrued Certificate Interest for such
Class, calculated using the Adjusted Net WAC Rate for such Distribution Date.
Adjusted Net Mortgage Rate: With respect to any Mortgage Loan and any date of
determination, a rate equal to the per annum Mortgage Rate in effect on such
date under such Mortgage Loan less the sum of the (i) Servicing Fee Rate (ii)
the Master Servicing Fee Rate and (iii) the LPMI Fee Rate, if any.
Adjusted Net WAC Rate: On any Distribution Date, the excess, if any, of (a) the
Net WAC Rate over (b) the percentage equivalent of a fraction equal to the
product of (i) a fraction, the numerator of which is equal to the product of (A)
the Additional Negative Amortization Amount, if any, for such Distribution Date
and (B) 12, and the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the related Due
Period and (ii) a fraction, the numerator of which is equal to 30 and the
denominator of which is equal to the number of days in the related Accrual
Period.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, the date, as
identified on the Mortgage Loan Schedule, on which the Mortgage Rate is adjusted
in accordance with the terms of the related Mortgage Note and Mortgage.
Advance: Any Monthly Advance or Servicing Advance.
Adverse REMIC Event: As defined in Section 12.01.
Affiliate: With respect to any specified Person, any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
Aggregate Overcollateralization Release Amount: For any Distribution Date, the
excess of the Overcollateralization Amount for such Distribution Date over the
Target Overcollateralization Amount for any Distribution Date.
Agreement: This Pooling Agreement, including all exhibits and schedules hereto,
and all amendments or supplements hereto.
11
Applied Realized Loss Amount: With respect to each Distribution Date, the
excess, if any, of (a) the aggregate Certificate Principal Balances of the
Certificates (other than the Class C Certificates) after taking into account the
distribution of the Principal Distribution Amount on such Distribution Date and
any increase in the aggregate Certificate Principal Balance of any Class of
Certificates as a result of Subsequent Recoveries over (b) the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the month of such
Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the lesser of (a) the value
set forth on the appraisal made in connection with the origination of the
related Mortgage Loan as the value of the related Mortgaged Property, or (b) the
amount paid by the Mortgagor for the Mortgaged Property, provided, however, that
in the case of a refinanced Mortgage Loan or a Mortgage Loan that was not
originated in connection with the borrower's purchase of the Mortgaged Property,
such value shall be based solely on the appraisal made in connection with the
origination of such Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
assignment of the Mortgage to the Trustee, which assignment, notice of transfer
or equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties in the same
jurisdiction, if permitted by law.
Available Funds: With respect to any Distribution Date, the total amount of all
cash received by the Securities Administrator from each Servicer or any other
party with respect to the Mortgage Loans and such Distribution Date, including
(1) all Scheduled Monthly Payments on the related Mortgage Loans and due during
the Due Period related to such Distribution Date (net of the related Servicing
Fees, Master Servicing Fee and LPMI Policy Fees), together with any Advances in
respect thereof, (2) all Condemnation Proceeds, Insurance Proceeds, Liquidation
Proceeds and Subsequent Recoveries, in each case collected by the Servicers
during the related Prepayment Period, (3) all Principal Prepayments, together
with any accrued interest thereon, identified as having been received from the
related Mortgage Loans during the related Prepayment Period, (4) all
Compensating Interest Payments made by the Master Servicer and/or received from
the Servicers in respect of Prepayment Interest Shortfalls with respect to the
related Mortgage Loans occurring during the related Prepayment Period, (5) the
aggregate Repurchase Price paid during the related Prepayment Period, (6) all
Non-Mortgagor Prepayment Premium Payment Amounts for the related Prepayment
Period, (7) all Prepayment Premiums relating to Mortgage Loans that are prepaid
in full during the related Prepayment Period, if such Prepayment Premiums are
owned by the Issuing Entity, as indicated in the Mortgage Loan Schedule, (8) any
Substitution Adjustment Amounts received by the Securities Administrator during
the related Prepayment Period and (9) on the Distribution Date on which the
Mortgage Loans are purchased pursuant to the provisions of Article XI hereof,
the Termination Price, minus:
(A) all related fees, charges and other amounts payable or
reimbursable to the Master Servicer, the Securities Administrator, the
Custodian or the Trustee under this Agreement or to the related Servicer
under the applicable Servicing Agreement, as applicable;
12
(B) in the case of (2), (3), (4) and (5) above, any related
unreimbursed expenses incurred by the related Servicer in connection with a
liquidation or foreclosure and any unreimbursed Advances due to the Master
Servicer or the related Servicer;
(C) any related unreimbursed Non-recoverable Advances due to the
Master Servicer or the Servicers; and
(D) in the case of (1) through (4) above, any related amounts
collected which are determined to be attributable to a subsequent Due
Period or Prepayment Period.
Back-Up Certification: As defined in Section 4.04.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended, as
codified in 11 U.S.C. Sections 101-1330.
Basic Principal Distribution Amount: With respect to any Distribution Date, an
amount equal to the lesser of (a) the excess, if any, of (i) the Available Funds
for such Distribution Date over (ii) the aggregate amount of Accrued Certificate
Interest for the Class A and Class B Certificates minus any payments from the
Cap Agreement for the Class A-2A Certificates for such Distribution Date and (b)
the Principal Remittance Amount.
Benefit Plan Affidavit: An affidavit in substantially the form attached hereto
as Exhibit G.
Book-Entry Certificates: Each Class of Certificates other than the Class C, R
and RX Certificates.
Business Day: Any day other than (a) a Saturday or a Sunday or (b) a day on
which banking institutions in the states of New York, Maryland or Minnesota, or
any other city in which the corporate trust office of the Trustee or the
principal office of the Securities Administrator is located, are authorized or
obligated by law or executive order to be closed.
Cap Account: The Eligible Account or Accounts created and maintained pursuant to
Section 8.04.
Cap Agreement: The 2002 ISDA Master Agreement, dated as of September 28, 2006
(together with the schedule thereto, the "Master Agreement"), between the Cap
Provider and the Supplemental Interest Trust Trustee, and a confirmation of the
same date, which supplements and forms part of the Master Agreement, the form of
schedule to which has been attached hereto as Exhibit M-1 and the form of
confirmation to which has been attached hereto as Exhibit M-2.
Cap Early Termination: The occurrence of an Early Termination Date under the Cap
Agreement.
Cap Payment: With respect to each Distribution Date, the "Cap Payment Amount"
(as defined in the Cap Agreement) related to such Distribution Date.
13
Cap Provider: Barclays Bank, PLC.
Cap Termination Payment: A termination payment that the Cap Provider or
Supplemental Interest Trust may be liable to make to the other upon any Cap
Early Termination (regardless, if applicable, of which of the parties has caused
the termination).
Certificate: Any one of the mortgage-backed Certificates issued pursuant to this
Agreement executed by the Securities Administrator in substantially the forms
attached hereto as Exhibit A-1 Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit A-4.
Certificate Owner: With respect to a Book-Entry Certificate, the Person who is
the beneficial owner of a Book-Entry Certificate. With respect to any Definitive
Certificate, the Certificateholder of such Certificate.
Certificate Principal Balance: With respect to any Class of Certificates other
than the Class C, Class R and Class RX Certificates and any Distribution Date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the initial principal balance of
such Class of Certificates as of the Closing Date minus the sum of (a) all
distributions of principal previously made with respect that Class of
Certificates and (b) all Realized Losses previously allocated to that Class of
Certificates, and increased by any Subsequent Recoveries allocated to such Class
for previous Distribution Dates. Solely for federal income tax purposes, with
respect to each Class C Certificate as of any Distribution Date, the Percentage
Interest evidenced by such Certificate times the Uncertificated Principal
Balance of the Class C Interest. For purposes of Article VIII hereof, unless
specifically provided to the contrary, the Certificate Principal Balance shall
be determined as of the close of business of the immediately preceding
Distribution Date, after giving effect to all distributions made on such
Distribution Date.
Certificateholder or Holder: With respect to a Book-Entry Certificate, the
beneficial owner of such Book-Entry Certificate, and with respect to a
Definitive Certificate, the Holder of such Definitive Certificate and in whose
name a Certificate is registered in the Certificate Register.
Certificate Registrar: The Person appointed to maintain the Certificate
Register.
Certificate Register: The register maintained pursuant to Section 9.02.
Certification Parties: As defined in Section 4.04.
Certifying Person: As defined in Section 4.04.
Class: All Certificates bearing the same class designation as set forth in the
Preliminary Statement. In the case of the REMIC Regular Interests, the term
"Class" refers to such REMIC Regular Interests having the same designation as
set forth in the Preliminary Statement.
14
Class A Certificates: The Luminent Mortgage Trust 2006-6 Mortgage Pass-Through
Certificates, Series 2006-6, Class A1, Class A-2A, Class A-2B and Class A3
Certificates having an initial Certificate Principal Balance and Pass-Through
Rate as set forth herein and representing (i) a Regular Interest in REMIC II and
(ii) the right to receive amounts in respect of its related Net WAC Cap
Carryover Amount and in the case of the Class A-2A Certificates during the
period of the Cap Agreement, Additional Negative Amortization Carryover Amounts.
Class A-2 Certificates: The Class A-2A Certificates and the Class A-2B
Certificates.
Class B Certificates: The Luminent Mortgage Trust 2006-6 Mortgage Pass-Through
Certificates, Series 2006-6, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-7, Class B-8 and Class B-9 Certificates having an
initial Certificate Principal Balance and Pass-Through Rate as set forth herein
and representing (i) a Regular Interest in REMIC II with respect to the Class
▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ and B-6 Certificates and a Regular Interest in REMIC
III, REMIC IV and REMIC V with respect to the Class ▇-▇, ▇-▇ and B-9
Certificates, respectively and (ii) the right to receive amounts in respect of
its related Net WAC Cap Carryover Amount.
Class B-1 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Senior Principal
Distribution Amount on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (a) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related prepayment period, and after reduction for
Realized Losses incurred during the related prepayment period) multiplied by (i)
prior to the Distribution Date in September 2012 85.250% and (ii) on or after
the Distribution Date in September 2012 88.200% and (b) the amount, if any, by
which (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related prepayment
period, and after reduction for Realized Losses incurred during the related
prepayment period) exceeds (ii) the sum of 0.50% of the Cut-off Date Balance and
the aggregate Additional Negative Amortization Amount.
Class B-2 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A
Certificates and Class B-1 Certificates (after taking into account the
distribution of the Senior and Class B-1 Principal Distribution Amount on such
Distribution Date) and (ii) the Certificate Principal Balance of the Class B-2
Certificates immediately prior to such Distribution Date over (y) the lesser of
(a) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related prepayment
period, and after
15
reduction for Realized Losses incurred during the related prepayment period)
multiplied by (i) prior to the Distribution Date in September 2012 88.750% and
(ii) on or after the Distribution Date in September 2012 91.000% and (b) the
amount, if any, by which (i) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related prepayment period, and after reduction for Realized Losses
incurred during the related prepayment period) exceeds (ii) the sum of 0.50% of
the Cut-off Date Balance and the aggregate Additional Negative Amortization
Amount.
Class B-3 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A, Class
B-1 and Class B-2 Certificates (after taking into account the distribution of
the Senior, Class B-1 and Class B-2 Principal Distribution Amount on such
Distribution Date) and (ii) the Certificate Principal Balance of the Class B-3
Certificates immediately prior to such Distribution Date over (y) the lesser of
(a) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related prepayment
period, and after reduction for Realized Losses incurred during the related
prepayment period) multiplied by (i) prior to the Distribution Date in September
2012 90.125% and (ii) on or after the Distribution Date in September 2012
92.100% and (b) the amount, if any, by which (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related prepayment period, and after reduction for
Realized Losses incurred during the related prepayment period) exceeds (ii) the
sum of 0.50% of the Cut-off Date Balance and the aggregate Additional Negative
Amortization Amount.
Class B-4 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A, Class
B-1, Class B-2 and Class B-3 Certificates (after taking into account the
distribution of the Senior, Class B-1, Class B-2 and Class B-3 Principal
Distribution Amount on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class B-4 Certificates immediately prior to such
Distribution Date over (y) the lesser of (a) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related prepayment period, and after reduction for
Realized Losses incurred during the related prepayment period) multiplied by (i)
prior to the Distribution Date in September 2012 92.500% and (ii) on or after
the Distribution Date in September 2012 94.000% and (b) the amount, if any, by
which (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related prepayment
period, and after reduction for Realized Losses incurred
16
during the related prepayment period) exceeds (ii) the sum of 0.50% of the
Cut-off Date Balance and the aggregate Additional Negative Amortization Amount.
Class B-5 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A, Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates (after taking into account
the distribution of the Senior, Class B-1, Class B-2, Class B-3 and Class B-4
Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class B-5 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related prepayment period, and after reduction for
Realized Losses incurred during the related prepayment period) multiplied by (i)
prior to the Distribution Date in September 2012 93.750% and (ii) on or after
the Distribution Date in September 2012 95.000% and (b) the amount, if any, by
which (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related prepayment
period, and after reduction for Realized Losses incurred during the related
prepayment period) exceeds (ii) the sum of 0.50% of the Cut-off Date Balance and
the aggregate Additional Negative Amortization Amount.
Class B-6 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A, Class
B-1, Class B-2, Class B-3, Class B-4 and Class B-5 Certificates (after taking
into account the distribution of the Class A, Class B-1, Class B-2, Class B-3,
Class B-4 and Class B-5 Principal Distribution Amount on such Distribution Date)
and (ii) the Certificate Principal Balance of the Class B-6 Certificates
immediately prior to such Distribution Date over (y) the lesser of (a) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related prepayment
period, and after reduction for Realized Losses incurred during the related
prepayment period) multiplied by (i) prior to the Distribution Date in September
2012 95.000% and (ii) on or after the Distribution Date in September 2012
96.000% and (b) the amount, if any, by which (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related prepayment period, and after reduction for
Realized Losses incurred during the related prepayment period) exceeds (ii) the
sum of 0.50% of the Cut-off Date Balance and the aggregate Additional Negative
Amortization Amount.
Class B-7 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate
17
Principal Balance of the Class A, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates (after taking into account the distribution
of the Senior, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6 Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class B-7 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related prepayment period, and after reduction for
Realized Losses incurred during the related prepayment period) multiplied by (i)
prior to the Distribution Date in September 2012 96.250% and (ii) on or after
the Distribution Date in September 2012 97.000% and (b) the amount, if any, by
which (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related prepayment
period, and after reduction for Realized Losses incurred during the related
prepayment period) exceeds (ii) the sum of 0.50% of the Cut-off Date Balance and
the aggregate Additional Negative Amortization Amount.
Class B-8 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class B-7
Certificates (after taking into account the distribution of the Senior, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class B-7
Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class B-8 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related prepayment period, and after reduction for
Realized Losses incurred during the related prepayment period) multiplied by (i)
prior to the Distribution Date in September 2012 97.750% and (ii) on or after
the Distribution Date in September 2012 98.200% and (b) the amount, if any, by
which (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related prepayment
period, and after reduction for Realized Losses incurred during the related
prepayment period) exceeds (ii) the sum of 0.50% of the Cut-off Date Balance and
the aggregate Additional Negative Amortization Amount.
Class B-9 Principal Distribution Amount: For any applicable Distribution Date on
or after the Stepdown Date as long as a Trigger Event has not occurred with
respect to such Distribution Date, an amount equal to the excess (if any) of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class B-7
Certificates (after taking into account the distribution of the Senior, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7 and Class
B-8 Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class B-8 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the
18
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related prepayment
period, and after reduction for Realized Losses incurred during the related
prepayment period) multiplied by (i) prior to the Distribution Date in September
2012 98.500% and (ii) on or after the Distribution Date in September 2012
98.800% and (b) the amount, if any, by which (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related prepayment period, and after reduction for
Realized Losses incurred during the related prepayment period) exceeds (ii) the
sum of 0.50% of the Cut-off Date Balance and the aggregate Additional Negative
Amortization Amount.
Class C Certificates: The Luminent Mortgage Trust 2006-6 Mortgage Pass-Through
Certificates, Series 2006-6, Class C Certificates having an initial Notional
Amount and Uncertificated Principal Balance and associated Pass-Through Rate as
set forth herein and representing (i) a Regular Interest in REMIC VI, and (ii)
the obligation to pay the Net WAC Cap Carryover Amounts.
Class C Distributable Amount: With respect to any Distribution Date and the
Class C Interest, the sum of (i) subject to distributions in respect of Section
8.05(iii)(A) - (U), the interest accrued on such Class C Interest at its
Pass-Through Rate (with distributions as limited on any Distribution Date by the
Adjusted Net WAC Rate) calculated on its Notional Amount (and any amounts in
respect of such amounts remaining unpaid from prior Distribution Dates) less the
amount (without duplication) of Net WAC Cap Carryover Amounts paid pursuant to
Section 8.05(a)(iii)(V) and the amount paid pursuant to Section 8.05(a)(iii)(W),
(ii) subject to distributions in respect of Section 8.05(iii)(A) - (U), any
remaining Aggregate Overcollateralization Release Amounts and (iii) the
aggregate of amounts remaining in the Reserve Account after the distributions in
Section 8.05(a)(iii)(V), as specified in Section 8.02(b)(i) - (v). With respect
to the Class C Certificate, 100% of the amount distributed to the Class C
Interest.
Class C Interest: An uncertificated interest in the Trust Fund representing the
right to distributions as set forth herein and evidencing (i) a Regular Interest
in REMIC II and (ii) the obligation to pay the Net WAC Cap Carryover Amount.
Class R Certificates: The Luminent Mortgage Trust 2006-6 Mortgage Pass-Through
Certificates, Series 2006-6, Class R Certificates representing the Residual
Interest in each of REMIC I and REMIC II.
Class R-I Interest: The uncertificated Residual Interest in REMIC I.
Class R-II Interest: The uncertificated Residual Interest in REMIC II.
Class RX Certificates: The Luminent Mortgage Trust 2006-6 Mortgage Pass-Through
Certificates, Series 2006-6, Class RX Certificates representing the Residual
Interest in each of REMIC III, REMIC IV, REMIC V and REMIC VI.
19
Class RX-III Interest: The uncertificated Residual Interest in REMIC III.
Class RX-IV Interest: The uncertificated Residual Interest in REMIC IV.
Class RX-V Interest: The uncertificated Residual Interest in REMIC V.
Class RX-VI Interest: The uncertificated Residual Interest in REMIC VI.
Clean-up Call: The termination of the Issuing Entity in connection with the
purchase of the Mortgage Loans pursuant to Section 11.01.
Closing Date: September 28, 2006.
Code: The Internal Revenue Code of 1986, as it may be amended from time to time,
or any successor statutes thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
Commission: The Securities and Exchange Commission.
Compensating Interest Payment: With respect to any Distribution Date and any
Servicer, an amount equal to the least of (a) the aggregate Prepayment Interest
Shortfall for such Distribution Date with respect to the Mortgage Loans serviced
by such Servicer, (b) the amount of the Servicing Fee actually paid to, or
retained by, such Servicer in respect of such Distribution Date, and (c) such
other amount as may be specified in the related Servicing Agreement.
Condemnation Proceeds: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise of the
power of eminent domain or condemnation, to the extent not required to be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents.
Control: The meaning specified in Section 8-106 of the UCC.
Corporate Trust Office: With respect to:
(a) the Securities Administrator, the principal corporate trust office at
which, at any particular time, its corporate trust business in connection with
this Agreement shall be administered, which office, at the date of the execution
of this Agreement, is located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (or for overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇) Attention: Corporate Trust Services-Client Manager Luminent
2006-6, or at such other address as the Securities Administrator may designate
from time to time by notice to Certificateholders, the Trustee, the Depositor,
the Seller, the Master Servicer and the Servicer; provided, however, that with
respect to the Securities Administrator and presentment of the Certificates for
registration of transfer, exchange or final payment: ▇▇▇▇▇ Fargo Bank, N.A.,
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Services-Client Manager Luminent 2006-6; and
(b) the Trustee, the principal office of the Trustee at which at any
particular time its corporate trust business in connection with this Agreement
shall be administered, which office at
20
the date of execution of this Agreement is located at HSBC Bank USA, National
Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust & Loan Agency/Luminent 2006-6, or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Securities
Administrator, the Depositor, the Seller and the Master Servicer.
Corresponding Class: The following chart illustrates the Corresponding Classes
of Uncertificated REMIC I Regular Interests, Uncertificated REMIC II Regular
Interests and Certificates:
UNCERTIFICATED REMIC I UNCERTIFICATED REMIC II
REGULAR INTEREST REGULAR INTEREST CLASS OF CERTIFICATES
---------------------- ----------------------- ---------------------
LT1A1 ▇-▇ ▇▇▇▇▇▇▇▇ ▇-▇ Certificate
▇▇▇-▇▇ ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇ ▇-▇ Certificate
LTB1 B-1 Interest B-1 Certificate
▇▇▇▇ ▇-▇ Interest B-2 Certificate
▇▇▇▇ ▇-▇ Interest B-3 Certificate
▇▇▇▇ ▇-▇ Interest B-4 Certificate
▇▇▇▇ ▇-▇ Interest B-5 Certificate
▇▇▇▇ ▇-▇ Interest B-6 Certificate
▇▇▇▇ ▇-▇ Interest B-7 Certificate
▇▇▇▇ ▇-▇ Interest B-8 Certificate
▇▇▇▇ ▇-▇ Interest B-9 Certificate
N/A Class C Interest Class C Certificate
Corresponding REMIC I Marker Classes: Uncertificated REMIC I Regular Interest
LTA1, Uncertificated REMIC I Regular Interest LTA2A, Uncertificated REMIC I
Regular Interest LTA2B, Uncertificated REMIC I Regular Interest LTA3,
Uncertificated REMIC I Regular Interest LTB1, Uncertificated REMIC I Regular
Interest LTB2, Uncertificated REMIC I Regular Interest LTB3, Uncertificated
REMIC I Regular Interest LTB4, Uncertificated REMIC I Regular Interest LTB5,
Uncertificated REMIC I Regular Interest LTB6, Uncertificated REMIC I Regular
Interest LTB7, Uncertificated REMIC I Regular Interest LTB8 and Uncertificated
REMIC I Regular Interest LTB9.
Credit Enhancement Percentage: For any Distribution Date and any Class of
Certificates, the percentage equivalent of a fraction the numerator of which is
equal to the aggregate Certificate Principal Balances of all Classes of
Certificates that are subordinate to such Class of Certificates and the
denominator of which is equal to the aggregate Stated Principal Balances of the
Mortgage Loans as of the Due Date of the related Due Period.
Cumulative Realized Losses: The aggregate Realized Losses incurred in respect of
Liquidated Mortgage Loans since the Cut-off Date.
Cumulative Realized Loss Percentage: With respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the aggregate
amount of Cumulative Realized Losses incurred on the Mortgage Loans from the
Cut-off Date through the last day of
21
the related Due Period and the denominator of which is the aggregate Cut-off
Date Balance of the Mortgage Loans.
Custodial Account: The account or accounts established and maintained pursuant
to each Servicing Agreement for the deposit of principal and interest
collections on the Mortgage Loans.
Custodial Agreement: The Custodial Agreement, dated as of September 1, 2006, by
and between the Trustee and the Custodian, as amended or modified from time to
time.
Custodian: ▇▇▇▇▇ Fargo Bank, N.A., or its successor in interest or assigns in
its capacity as custodian under the Custodial Agreement
Cut-off Date: September 1, 2006.
Cut-off Date Balance: The aggregate Stated Principal Balance of the Mortgage
Loans as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction in the
Scheduled Monthly Payment that the related Mortgagor is obligated to pay on any
Due Date as a result of any proceeding under bankruptcy law or any similar
proceeding.
Deferred Interest: With respect to any Mortgage Loan and the related Due Date,
the excess, if any, of the amount of interest accrued on such Mortgage Loan from
the preceding Due Date to such Due Date over the monthly interest payment due on
such Due Date.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a court
of competent jurisdiction of the Mortgaged Property in an amount less than the
then-outstanding indebtedness under the Mortgage Loan, or any reduction in the
amount of principal to be paid in connection with any Scheduled Monthly Payment
that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a physical certificate and
any Certificate issued in lieu of a Book-Entry Certificate pursuant to Section
9.02(e).
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the Trust Fund
or as to which one or more Qualified Substitute Mortgage Loans are substituted
therefor.
Delinquency Rate: For any Due Period, the fraction, expressed as a percentage,
the numerator of which is the aggregate Stated Principal Balance of all Mortgage
Loans that are 60 or more days Delinquent (including all Mortgage Loans in
foreclosure, all REO Properties and all Mortgage Loans for which the Mortgagor
has filed for bankruptcy after the Closing Date) as of the close of business on
the last day of the preceding calendar month, and the denominator of which is
the aggregate Stated Principal Balance of the Mortgage Loans as of the close of
business on the last day of such calendar month.
22
Delinquent: Any Mortgage Loan with respect to which a Scheduled Monthly Payment
would be "delinquent" as determined in accordance with the Mortgage Bankers
Association determination of a delinquent mortgage loan.
Depositor: ▇▇▇▇▇ Asset Securitization, Inc., a Delaware corporation, or its
successors in interest.
Depository: The initial Depository shall be The Depository Trust Company, the
nominee of which is Cede & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the UCC of the State of New York and
registered as a "clearing agency" pursuant to Section 17A of the Exchange Act as
amended.
Determination Date: With respect to any Distribution Date and Servicer, the
Business Day preceding the related Servicer Remittance Date or as otherwise
specified in the related Servicing Agreement.
Disqualified Organization: (a) The United States, any State or political
subdivision thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing; (b) any organization
(other than a ▇▇▇▇▇▇'▇ cooperative as defined in Section 521 of the Code) that
is exempt from federal income taxation (including taxation under the unrelated
business taxable income provisions of the Code); (c) any rural telephone or
electrical service cooperative described in Section 1381(a)(2)(C) of the Code;
(d) any foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of a U.S. Person; (e) any "electing large
partnership"; or (f) any other entity so designated by Treasury rulings or
regulations promulgated or otherwise in effect as of the date hereof. In
addition, a corporation will not be treated as an instrumentality of the United
States or of any state or political subdivision thereof if all of its activities
are subject to tax and, with the exception of ▇▇▇▇▇▇▇ Mac, a majority of its
board of directors is not selected by such governmental unit.
Distribution Account: The separate account established and maintained pursuant
to Section 8.01.
Distribution Date: The 25th day of each calendar month or if the 25th day is not
a Business Day, the next succeeding Business Day, commencing in October 2006.
Distribution Date Report: As defined in Section 4.06.
Due Date: The day of the month on which the Scheduled Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace, as specified in the related
Mortgage Note.
Due Period: With respect to any Distribution Date and a Mortgage Loan, the
period commencing on the second day of the month immediately preceding the month
in which such Distribution Date occurs (or the day following the Cut-off Date in
respect of the first Due Period) and ending at the close of business on the
first day of the calendar month in which such Distribution Date occurs.
▇▇▇▇▇: The "Electronic Data Gathering, Analysis, and Retrieval" system of the
Commission, which performs automated collection, validation, indexing,
acceptance, and forwarding of
23
submissions by companies and others who are required by law to file forms with
the Commission.
Eligible Account: Any of
(a) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated in the highest
short term rating category of each Rating Agency at the time any amounts are
held on deposit therein;
(b) an account or accounts the deposits in which are fully insured by the
FDIC (to the limits established by it), the uninsured deposits in which account
are otherwise secured such that, as evidenced by an Opinion of Counsel delivered
to the Securities Administrator, the Trustee and each Rating Agency, the Trustee
on behalf of the Certificateholders will have a claim with respect to the funds
in the account or a perfected first priority security interest against the
collateral (which shall be limited to Permitted Investments) securing those
funds that is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained and which uninsured
deposits shall not cause any Rating Agency to reduce its then-current rating on
any Certificate, as evidenced by a rating confirmation from each such Rating
Agency;
(c) a trust account or accounts maintained with the trust department of a
federal or state chartered depository institution, national banking association
or trust company acting in its fiduciary capacity; or
(d) an account otherwise acceptable to each Rating Agency without reduction
or withdrawal of its then current ratings of the Certificates as evidenced by a
letter from such Rating Agency to the Securities Administrator and the Trustee.
Eligible Accounts may bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificates: Any of the Class R, Class RX, Class C and Class P
Certificates and any Class of Certificates that is subordinated to any other
Class of Certificates or with a rating less than "AA-" by S&P or Aa3" by
Moody's.
Errors and Omissions Insurance Policy: An errors and omissions insurance policy
to be maintained by each Servicer pursuant to the applicable Servicing Agreement
or by the Master Servicer pursuant to Section 5.03.
Escrow Account: The separate account or accounts created and maintained by each
Servicer pursuant to each Servicing Agreement for the deposit of taxes and
insurance collections on the Mortgage Loans.
Escrow Payments: With respect to any Mortgage Loan, the amounts constituting
ground rents, taxes, assessments, water rates, sewer rents, municipal charges,
fire and hazard insurance
24
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Excess Cash Flow: With respect to any Distribution Date, an amount equal to
Available Funds remaining after distribution of all amounts pursuant to Section
8.05(a)(i) and (ii).
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, a federally chartered and privately owned corporation
organized and existing under the Federal National Mortgage Association Charter
Act, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FICO: The credit score used for underwriting a Mortgage Loan.
Fidelity Bond: A fidelity bond to be maintained by each Servicer pursuant to the
applicable Servicing Agreement or by the Master Servicer pursuant to Section
5.03.
Final Certification: A certification as to the completeness of each Mortgage
File provided by the Custodian within 90 days following the Closing Date in
accordance with the Custodial Agreement.
Final Scheduled Distribution Date: The Distribution Date following the month of
the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the Cut-off Date.
Fixed Rate Mortgage Loan: Any Mortgage Loan for which the Mortgage Rate is
constant and is not determined by reference to an Index, and identified as such
on the Mortgage Loan Schedule.
Form 8-K Disclosure Information: As defined in Section 4.05(a)(iii).
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation (FHLMC), or any
successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note which is added to the
Index in order to determine the related Mortgage Rate, as set forth in the
Mortgage Loan Schedule.
HUD: The United States Department of Housing and Urban Development, or any
successor thereto.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and Exchange
Commission's Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct financial
interest in such other Person or any Affiliate of such other Person, (c) is not
connected with such other Person or any Affiliate of such other Person as an
officer, employee, promoter,
25
underwriter, trustee, partner, director or Person performing similar functions
and (d) is not a member of the immediate family of a Person defined in clause
(b) or (c) above.
Index: The index specified in the related Mortgage Note for calculation of the
Mortgage Rate thereof.
Initial Certification: A certification as to the completeness of each Mortgage
File provided by the Custodian on the Closing Date in accordance with the
Custodial Agreement.
Insurance Policy: With respect to any Mortgage Loan included in the Trust Fund,
any Primary Mortgage Insurance Policy or any other insurance policy (including
any policy covering any Mortgage Loan or Mortgaged Property, including without
limitation, any hazard insurance policy required pursuant to Section 5.14, any
title insurance policy relating thereto and any Federal Housing Administration
insurance policies and Department of Veterans Affairs insurance policies),
including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other insurance
policy with respect to the Mortgage Loans.
Interest Distribution Amount: For each Class of Certificates on any Distribution
Date, the Accrued Certificate Interest for such Class for such Distribution Date
minus the amount, if any, by which the Accrued Certificate Interest for such
Class for such Distribution Date exceeds the Adjusted Accrued Certificate
Interest for such Class for such Distribution Date, which such excess shall be
paid through the Additional Negative Amortization Amount on future Distribution
Dates as specified in Section 8.05(a)(iii).
Investment Letter: As defined in Section 9.02.
Issuing Entity: Luminent Mortgage Trust 2006-6.
LIBOR: As to any Distribution Date, the London Interbank offered rate for
one-month U.S. Dollar deposits, as determined by the Securities Administrator in
accordance with Section 8.03.
Liquidated Mortgage Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the
Prepayment Period related to such Distribution Date and as to which the
applicable Servicer has certified to the Master Servicer and the Securities
Administrator that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan, including the final
disposition of any REO Property.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Servicer,
such expenses including (a) property protection expenses, (b) property sales
expenses, (c) foreclosure and sale costs, including court costs and reasonable
attorneys' fees, and (d) similar expenses reasonably paid or incurred in
connection with liquidation.
26
Liquidation Proceeds: Cash received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the related
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of the
Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to Mortgage Loan secured by a first
lien mortgage, the ratio of the original loan amount of such Mortgage Loan at
its origination (unless otherwise indicated) to (a) the Appraised Value of the
Mortgaged Property. With respect to any Mortgage Loan secured by a junior lien
position, a fraction, expressed as a percentage, the numerator of which is the
sum of (1) the original loan amount of the related Mortgage Loan and (2) any
outstanding principal balance of Mortgage Loans the liens on which are equal in
priority or senior to the lien on such related Mortgage Loan (each such sum
calculated at the date of origination of such related Mortgage Loan), and the
denominator of which is the Appraised Value of the Mortgaged Property.
London Business Day: Any day other than a Saturday or a Sunday or a day on which
banking institutions in the cities of London, England or New York, New York are
required or authorized by law to be closed.
Losses: As defined in Section 12.03.
LPMI Fee Rate: With respect to any Mortgage Loan that is indicated in the
Mortgage Loan Schedule as covered by an LPMI Policy, the rate defined in the
applicable Servicing Agreement, and set forth on the Mortgage Loan Schedule.
LPMI Policy: A Primary Mortgage Insurance Policy with respect to a Mortgage
Loan, the premiums of which are paid by someone other than the Mortgagor from
its own funds, without reimbursement.
LPMI Proceeds: Proceeds of any LPMI Policy.
Majority in Interest: As to the Certificates or any Class thereof, the Holders
of Certificates or Certificates of such Class evidencing, in the aggregate, at
least 51% of the Percentage Interests evidenced by all Certificates or all
Certificates of such Class.
Margin Stepup Date: The first Distribution Date after the date on which the
Clean-up Call may be exercised.
Marker Rate: With respect to the Class C Interest and any Distribution Date, a
per annum rate equal to two times the weighted average of the Uncertificated
REMIC I Pass-Through Rates for each Uncertificated REMIC I Regular Interest
(other than Uncertificated REMIC I Regular Interest LTAA), with the rate on each
such Uncertificated REMIC I Regular Interest (other than Uncertificated REMIC I
Regular Interest LTZZ) subject to the lesser of (i) LIBOR plus the applicable
Pass-Through Margin and (ii) the Net WAC Rate for the purpose of this
calculation for such Distribution Date and with the rate on Uncertificated REMIC
I Regular Interest LTZZ subject to a cap of zero for the purpose of this
calculation; provided, however, that solely for this purpose, calculations of
the Uncertificated REMIC I Pass-Through Rate and the related caps with respect
to each Uncertificated REMIC I Regular Interest (other than Uncertificated REMIC
27
I Regular Interest LTAA and Uncertificated REMIC I Regular Interest LTZZ) shall
be multiplied by a fraction, the numerator of which is the actual number of days
in the Accrual Period and the denominator of which is 30.
Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A. and its successors and assigns, in its
capacity as master servicer hereunder.
Master Servicer Event of Default: As defined in Section 5.09.
Master Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to (i) one twelfth of the Master Servicing Fee Rate multiplied by
(ii) the Stated Principal Balance of such Mortgage Loan as of the Due Date in
the prior calendar month.
Master Servicing Fee Rate: 0.0135% per annum.
Material Defect: With respect to any Mortgage Loan, as defined in Section 2.05.
Maximum LTZZ Uncertificated Interest Deferral Amount: With respect to any
Distribution Date, the excess of (i) accrued interest at the Uncertificated
REMIC I Pass-Through Rate applicable to Uncertificated REMIC I Regular Interest
LTZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of Uncertificated REMIC I Regular Interest LTZZ minus the
Uncertificated REMIC I Overcollateralization Amount, in each case for such
Distribution Date, over (ii) the Uncertificated Interest on each Uncertificated
REMIC I Regular Interest (other than Uncertificated REMIC I Regular Interest
LTAA and Uncertificated REMIC I Regular Interest LTZZ) for such Distribution
Date, with the rate on each such Uncertificated REMIC I Regular Interest subject
to a cap equal to the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the Net WAC Rate; provided, however, that solely for this
purpose, calculations of the Uncertificated REMIC I Remittance Rate and the
related caps with respect to each Uncertificated REMIC I Regular Interest (other
than Uncertificated REMIC I Regular Interest LTAA and Uncertificated REMIC I
Regular Interest LTZZ) shall be multiplied by a fraction, the numerator of which
is the actual number of days in the Accrual Period and the denominator of which
is 30.
MERS: MERSCORP, Inc., its successor and assigns.
MERS Designated Mortgage Loan: A Mortgage Loan for which (a) the Seller has
designated or will designate MERS as, and have taken or will take such action as
is necessary to cause MERS to be, the mortgagee of record, as nominee for the
Seller and its successors and assigns, in accordance with MERS Procedures Manual
and (b) the Seller has designated or will designate the Trustee as the Investor
on the MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more particularly
described in the MERS Procedures Manual.
28
Monthly Advance: With respect to any Mortgage Loan on any Determination Date, an
amount equal to the portion of each Scheduled Monthly Payment (or in the case of
EMC Mortgage Corporation, the interest portion of such Scheduled Monthly
Payment) due in the Due Period to which such Determination Date relates that is
delinquent at the close of business on such Determination Date, excluding any
balloon payment or any shortfalls attributable to the Relief Act.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc.
Mortgage: The mortgage, deed of trust or other instrument securing a Mortgage
Note, which creates a lien on an estate in fee simple or leasehold estate in
real property securing the Mortgage Note.
Mortgage File: The mortgage documents listed on Exhibit C hereto pertaining to a
particular Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan sold and subject to this Agreement being
identified on the Mortgage Loan Schedule hereto, which Mortgage Loan includes
without limitation the Mortgage File, the Scheduled Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The documents referred to in Section (a) of Exhibit C.
Mortgage Loan Purchase Agreement: Any of (i) the Standard Terms and Provisions
of Sale and Servicing Agreement dated March 30, 2006 by and between Residential
Funding Corporation as seller and master servicer and Luminent Mortgage Capital,
Inc., Mercury Mortgage Finance Statutory Trust and the Seller as the initial
owner, as supplemented by Reference Agreements dated March 30, 2006, July 28,
2006 and August 30, 2006, each by and between Residential Funding Corporation as
seller and master servicer and Maia Mortgage Finance Statutory Trust as the
initial owner, as amended by the Reconstituted Servicing Agreement dated
September 28, 2006 by and between Residential Funding Corporation, the
Depositor, the Seller and ▇▇▇▇▇ Fargo Bank, N.A. (and acknowledged by the
Trustee) and the First Amendment to Standard Terms and Provisions of Sale and
Servicing Agreement dated as of August 30, 2006 among Residential Funding
Corporation, Luminent Mortgage Capital, Inc., Mercury Mortgage Finance Statutory
Trust and the Seller; (ii) the Amended and Restated Purchase, Warranties and
Servicing Agreement dated April 24, 2006 by and between EMC Mortgage Corporation
as the company and Luminent Mortgage Capital, Inc., Mercury Mortgage Finance
Statutory Trust and the Seller as purchasers, as amended by the Reconstituted
Servicing Agreement dated September 28, 2006 by and between EMC Mortgage
Corporation, the Depositor, the Seller and ▇▇▇▇▇ Fargo Bank, N.A. (and
acknowledged by the Trustee); (iii) the Flow Sale and Servicing Agreement dated
April 21, 2006 by and between IndyMac Bank, F.S.B. as the company and Luminent
Mortgage Capital, Inc., Mercury Mortgage Finance Statutory Trust and the Seller
as purchasers, as amended by the Reconstituted Servicing Agreement dated
September 28, 2006 by and between IndyMac Bank, F.S.B., the Depositor, the
Seller and ▇▇▇▇▇ Fargo Bank, N.A. (and acknowledged by the Trustee); (iv) the
Master Mortgage Loan Purchase and Servicing
29
Agreement dated December 15, 2003 by and between Countrywide Home Loans, Inc. as
the company and Citigroup Global Markets Realty Corp. as the purchaser, as
amended by Amendment Reg AB to the Amended and Restated Master Mortgage Loan
Purchase and Servicing Agreement dated February 28, 2006 by and between
Citigroup Global Markets Realty Corp. as purchaser and Countrywide Home Loans,
Inc., as amended by the Assignment, Assumption and Recognition Agreement dated
August 15, 2006 among Citigroup Global Markets Realty Corp. as assignor, Maia
Mortgage Finance Statutory Trust as assignee and Countrywide Home Loans, Inc.,
as further amended by the Reconstituted Servicing Agreement dated September 28,
2006 by and between Countrywide Home Loans, Inc., the Depositor, the Seller and
▇▇▇▇▇ Fargo Bank, N.A. (and acknowledged by the Trustee); and (v) the Mortgage
Loan Purchase Agreement dated September 1, 2006, by and between MortgageIT as
the seller and Barclays Bank PLC as the purchaser, as amended by the Assignment
and Recognition Agreement dated as of September 15, 2006 by and among Barclays
Bank PLC as assignor, Maia Mortgage Finance Statutory Trust as assignee and
MortgageIT, Inc. as the company, the Mortgage Loans transferred under such
agreements being serviced pursuant to the Interim Servicing Agreement dated
September 1, 2006 by and among GMAC Mortgage Corporation as the company, Maia
Mortgage Finance Statutory Trust Statutory Trust as the initial owner and ▇▇▇▇▇
Fargo Bank, N.A. as master servicer and securities administrator (and
acknowledged by the Trustee), and the Servicing Agreement dated July 17, 2006 by
and among Central Mortgage Company as servicer and Luminent Mortgage Capital,
Inc., Maia Mortgage Finance Statutory Trust and Mercury Mortgage Finance
Statutory Trust as owner, as amended by the Reconstituted Servicing Agreement
dated September 28, 2006 by and between Central Mortgage Company, the Depositor,
the Seller and ▇▇▇▇▇ Fargo Bank, N.A. (and acknowledged by the Trustee).
Mortgage Loan Remittance Rate: With respect to any Mortgage Loan, the related
Mortgage Rate less the sum of the Servicing Fee Rate and the LPMI Fee Rate.
Mortgage Loan Schedule: The list of Mortgage Loans transferred to the Trustee,
or the Custodian on its behalf, as part of the Trust Fund and from time to time
subject to this Agreement attached hereto as Schedule A that sets forth the
information required on Exhibit B for each Mortgage Loan.
Mortgage Note: With respect to any Mortgage Loan, the original executed note or
other evidence of indebtedness evidencing the indebtedness of a Mortgagor under
such Mortgage Loan, including any riders or addenda thereto.
Mortgage Rate: With respect to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan from time to time in accordance with the
provisions of the related Mortgage Note.
Mortgaged Property: With respect to any Mortgage Loan, the real property
securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: With respect to any Mortgage Loan, the obligor on a Mortgage Note.
30
Net Prepayment Interest Shortfalls: As to any Distribution Date, the amount by
which the aggregate of Prepayment Interest Shortfalls during the related
Prepayment Period exceeds the Compensating Interest Payments made with respect
to such Distribution Date.
Net WAC Cap Carryover Amount: For any Distribution Date for the Class A-2A
Certificates, for the benefit of the Cap Provider while the Cap Agreement is in
effect, the sum of (i) the Cap Payment for such Distribution Date, if any, and
(ii) any Cap Payment, or portion thereof, remaining unpaid with respect to any
prior Distribution Dates, with interest thereon at the Pass-Through Rate for the
Class A-2A Certificates for such Distribution Date but only to the extent
previously unreimbursed to the Cap Provider by Excess Cash Flow.
For any Distribution Date for any Class of Class A Certificates (including
the Class A-2A Certificates if the Cap Agreement is not in effect) and for any
Class of Class B Certificates, the sum of (i) if on such Distribution Date the
Pass-Through Rate for the related Class of Certificates is based on the Net WAC
Rate, the excess, if any, of (a) the Accrued Certificate Interest that would
have been payable on such Distribution Date had the Pass-Through Rate for the
related Class of Certificates been calculated at the LIBOR-based rate with
respect to such Class of Certificates over (b) the Accrued Certificate Interest
for such Distribution Date, calculated at the Net WAC Rate and (ii) any Net WAC
Cap Carryover Amount remaining unpaid from prior Distribution Dates, with
interest thereon at the related Pass-Through Rate, computed without regard to
the Net WAC Rate, for such Distribution Date, but only to the extent previously
unreimbursed by Excess Cash Flow.
Net WAC Rate: As to any Distribution Date, a per annum rate equal to the product
of (a) the weighted average of the Mortgage Rates (less the applicable Servicing
Fee Rate, Master Servicing Fee Rate and LPMI Fee Rate) of the Mortgage Loans as
of the first day of the Due Period for such Distribution Date, weighted on the
basis of the Stated Principal Balances thereof as of the beginning of the
related Due Period, and (b) by a fraction the numerator of which is 30 and the
denominator of which is the number of days in the related Accrual Period.
Non-Mortgagor Prepayment Premium Payment Amount: With respect to any Mortgage
Loan that is prepaid in full and that is subject to a Prepayment Premium, in any
case where the Mortgage Loan Schedule indicates that the Issuing Entity owns
such Prepayment Premium, the amount payable by the related Servicer in respect
of any such Prepayment Premium that is waived or not collected. Such amount
shall equal the difference between the amount of Prepayment Premium due by the
related Mortgagor (and not properly waived) and the actual amount paid. Such
amounts, to the extent payable by the related Servicer pursuant to its Servicing
Agreement shall not be part of any Trust REMIC.
Non-permitted Foreign Holder: As defined in Section 9.02.
Non-recoverable Advance: Any Servicing Advance (in respect of the related
Servicer only) or Monthly Advance previously made or proposed to be made in
respect of a Mortgage Loan or REO Property by the related Servicer or Master
Servicer (in its capacity as successor servicer) which, in the good faith
judgment of the related Servicer or Master Servicer, as applicable, in
accordance with Accepted Servicing Practices will not or, in the case of a
proposed Servicing Advance or Monthly Advance, would not, ultimately be
recoverable by such Servicer or Master
31
Servicer from the related Mortgagor, related Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds or otherwise. The
determination by the related Servicer that all or a portion of a Servicing
Advance or Monthly Advance would be a Non-recoverable Advance shall be evidenced
by an Officer's Certificate delivered to the Master Servicer and the Securities
Administrator setting forth such determination and a reasonable explanation
thereof.
Non-U.S. Person: A Person that is not a U.S. Person.
Notional Amount: With respect to the Class C Certificates, a notional amount
equal to the aggregate principal balance of the Uncertificated REMIC I Regular
Interests. With respect to the Class C Interest, a notional amount equal to the
aggregate principal balance of the Uncertificated REMIC I Regular Interests.
Offered Certificates: The Class A and Class B Certificates (other than the Class
B-9 Certificates).
Officer's Certificate: A certificate (a) signed by the Chairman of the Board,
the Vice Chairman of the Board, the President, a Managing Director, a Vice
President, an Assistant Vice President, the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Depositor or the
Servicer, as the case may be, or (b), if provided for in this Agreement, signed
by a Servicing Officer and delivered to the Depositor, the Master Servicer, the
Securities Administrator and the Trustee, as the case may be, as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, which shall not be at the
expense of the Master Servicer, the Securities Administrator or the Trustee, who
may be counsel for the Seller, the Servicer, the Custodian, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee, including in-house
counsel, reasonably acceptable to the Securities Administrator, the Trustee
and/or the Master Servicer, as applicable; provided, however, that with respect
to the interpretation or application of the federal income tax or ERISA matters,
such counsel must be nationally recognized as expert in the federal income tax
or ERISA aspects, as applicable, of asset securitization and must be Independent
of the Securities Administrator, the Trustee and the Master Servicer.
Originator: Any of Residential Funding Corporation, MortgageIT, Inc.,
Countrywide Home Loan, Inc., EMC Mortgage Corporation and IndyMac Bank, F.S.B.
Outstanding: As of the date of determination, all Certificates theretofore
executed authenticated and delivered under this Agreement except:
(a) Certificates theretofore cancelled by the Certificate Registrar or
delivered to the Certificate Registrar for cancellation;
(b) Certificates the payment for which money in the necessary amount has
been theretofor deposited with the Securities Administrator in trust for the
Holders of such Certificates (provided, however, that if such Certificates are
to be redeemed, notice of such redemption has been duly given pursuant to this
Agreement or provision for such notice has been made, satisfactory to the
Securities Administrator); and
32
(c) Certificates in exchange for or in lieu of which other Certificates
have been authenticated and delivered pursuant to this Agreement unless proof
satisfactory to the Securities Administrator is presented that any such
Certificates are held by a bona fide purchaser;
provided, that in determining whether the Certificateholders of the requisite
Outstanding Balance of the Certificates have given any request, demand,
authorization, direction, notice, consent or waiver hereunder. Certificates
owned by the Depositor, any Servicer, or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Certificates that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded (unless such action requires the consent, waiver,
request or demand of 100% of the outstanding balance represented by a particular
Class and 100% of the outstanding balance represented by such Class is
registered in the name of one or more of the foregoing entities). Certificates
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Certificates and that the pledgee is not the
Depositor, any Servicer, or any Affiliate of any of the foregoing Persons.
Overcollateralization Amount: For any Distribution Date, the amount, if any, by
which (i) the aggregate Stated Principal Balance of the Mortgage Loans, exceeds
(ii) the aggregate Certificate Principal Balance of the Class A Certificates and
Class B Certificates as of such Distribution Date (after taking into account the
principal distributed on that Distribution Date and the increase of any
Certificate Principal Balance of any Class of Certificates as a result of
Subsequent Recoveries).
Overcollateralization Deficiency Amount: With respect to any Distribution Date,
the excess, if any, of the Target Overcollateralization Amount for such
Distribution Date over the Overcollateralization Amount for such Distribution
Date, after giving effect to distributions of the principal on, but prior to
allocation of the Realized Losses to the Certificates, on such Distribution
Date.
Ownership Interest: As to any Certificate, any ownership or security interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial, as owner or as pledgee.
Pass-Through Margin: With respect to the Offered Certificates, the following
percentages:
PRIOR TO MARGIN ON AND AFTER MARGIN
STEPUP DATE STEPUP DATE
--------------- -------------------
Class A-1 Certificates 0.200% 0.400%
Class A-2A Certificates 0.170% 0.340%
Class A-2B Certificates 0.240% 0.480%
Class A-3 Certificates 0.280% 0.560%
Class B-1 Certificates 0.380% 0.570%
Class B-2 Certificates 0.410% 0.615%
33
PRIOR TO MARGIN ON AND AFTER MARGIN
STEPUP DATE STEPUP DATE
--------------- -------------------
Class B-3 Certificates 0.440% 0.660%
Class B-4 Certificates 0.550% 0.825%
Class B-5 Certificates 0.600% 0.900%
Class B-6 Certificates 0.670% 1.005%
Class B-7 Certificates 1.500% 2.250%
Class B-8 Certificates 1.500% 2.250%
Class B-9 Certificates 1.500% 2.250%
Pass-Through Rate: With respect to the REMIC Regular Interest portion of each of
the Class A and Class B Certificates, a per annum rate equal to the lesser of
(a) LIBOR plus the related Pass-Through Margin and (b) the Net WAC Rate for such
Distribution Date.
With respect to the Class C Interest and any Distribution Date, a rate per
annum equal to the percentage equivalent of a fraction, the numerator of which
is the sum of interest on the Uncertificated Principal Balance of each
Uncertificated REMIC I Regular Interest listed in clause (y) at a rate equal to
the related Uncertificated REMIC I Pass-Through Rate minus the Marker Rate and
the denominator of which is (y) the aggregate Uncertificated Principal Balance
of each Uncertificated REMIC I Regular Interest.
With respect to the Class C Certificate, 100% of the interest distributable
on the Class C Interest.
With respect to the Uncertificated REMIC I Regular Interests, the
Uncertificated REMIC I Pass-Through Rate.
The Class R Certificates and the Class RX Certificates shall not have a
Pass-Through Rate.
Paying Agent: The Person appointed to make distributions on the Certificates.
Payment Adjustment Date: With respect to any Mortgage Loan, each date on which
the Scheduled Monthly Payment for such Mortgage Loan is adjusted, as indicated
on the Mortgage Loan Schedule.
Payment Cap: With respect to any Mortgage Loan, the limit, if any, contained in
the related Mortgage Note restricting the adjustment of the related Scheduled
Monthly Payment on any Payment Adjustment Date, as indicated on the Mortgage
Loan Schedule.
PCAOB: The Public Company Accounting Oversight Board.
Percentage Interest: As to any Certificate (other than the Class C
Certificates), the percentage equal to the percentage obtained by dividing the
initial Certificate Principal Balance of such Certificate by the initial
aggregate Certificate Principal Balances of all Certificates of such Class and,
with respect to the Class C Certificates, the percentage interest set forth on
the face thereof,
34
provided, however, that the sum of all such percentages for the Class C
Certificates shall total 100%.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders acquired at a purchase price of not greater than par,
regardless of whether issued or managed by the Depositor, the Trustee, the
Master Servicer, the Securities Administrator or any of their respective
affiliates or for which an affiliate serves as an advisor, will be considered a
permitted investment:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment of 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;
(b) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by or federal funds sold by any depository
institution or trust company (including the trustee, the securities
administrator or the master servicer or their agents acting in their
respective commercial capacities) incorporated under the laws of the United
States of America, any state thereof or the District of Columbia and
subject to supervision and examination by federal and/or state authorities,
so long as, at the time of such investment or contractual commitment
providing for such investment, such depository institution or trust company
or its ultimate parent has a short-term unsecured debt rating in one of the
two highest available rating categories of each rating agency rating the
Certificates and (B) any other demand or time deposit or deposit account
that is fully insured by the FDIC;
(c) repurchase obligations with respect to any security described in
clause (i) above and entered into with a depository institution or trust
company (acting as principal) incorporated under the laws of the United
States of America, any state thereof or the District of Columbia and rated
"A" or higher by the rating agencies rating the Certificates;
(d) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America, any state thereof or the District of Columbia and that are rated
by each rating agency rating the Certificates in its highest long-term
unsecured rating categories at the time of such investment or contractual
commitment providing for such investment;
(e) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) that is issued by any
corporation rated incorporated under the laws of the United States of
America, any state thereof or the District of Columbia that is by each
rating agency rating the Certificates in its highest short-term unsecured
debt rating available at the time of such investment;
(f) units of United States money market funds (which may be 12b-l
funds, as contemplated by the Commission under the Investment Company Act
of 1940) registered under the Investment Company Act of 1940 including
funds managed or advised by the trustee, the master servicer, the
securities administrator or an affiliate thereof having the
35
highest applicable rating from each rating agency rating the Certificates
and such fund; and
(g) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any other
obligation, security or investment, as may be acceptable to each rating
agency rating the Certificates in writing as a permitted investment of
funds backing securities having ratings equivalent to its highest initial
rating of the senior Certificates;
provided, however, that in each case, such Permitted Investment shall have
a final maturity (giving effect to any applicable grace period) no later than
the Business Day immediately preceding the Distribution Date (or, if the
Securities Administrator or an Affiliate is the obligor on, or managing or
advising, such Permitted Investment, the Distribution Date) next following the
Due Period in which the date of investment occurs; provided, further, however,
that, Permitted Investments may not include (i) any interest-only security, any
security purchased at a price in excess of 100% of the par value or any security
that provides for payments of both principal and interest derived from
obligations underlying such instrument and the principal and interest with
respect to such instrument provide a yield to maturity greater than 120% of the
yield to maturity at par of such underlying obligations, (ii) any floating rate
security whose interest rate is inversely or otherwise not proportionately
related to an interest rate index or is calculated as other than the sum of an
interest rate index plus a spread, (iii) securities subject to an offer, (iv)
any security with a rating from S&P which includes the subscript "p," "pi," "q,"
"r" or "t", or (v) any investment, the income from which is or will be subject
to deduction or withholding for or on account of any withholding or similar tax.
Permitted Transferee: Any person other than:
(a) a Disqualified Organization;
(b) a Non-U.S. Person unless such Non-U.S. Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service
Form W-8ECI or any applicable successor form; and
(c) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an ownership interest in a Residual
Certificate to such Person may cause any Trust REMIC to fail to qualify as
a REMIC at any time that the Certificates are outstanding.
Person: Any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Prepayment Interest Shortfall: With respect to any Distribution Date, for each
Mortgage Loan that was the subject of a Principal Prepayment in full or in part
during the related Prepayment Period and that the related Servicer applied to
reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding calendar month, an amount equal to
interest at the applicable Mortgage Loan Remittance Rate on the amount of such
36
Principal Prepayment for the number of days commencing on the date on which the
prepayment is applied and ending on the last day of the calendar month preceding
such Distribution Date.
Prepayment Period: With respect to any Distribution Date and Servicer, the
calendar month preceding the month in which the Distribution Date occurs, or
such other period as set forth in the related Servicing Agreement.
Prepayment Premium: With respect to a Mortgage Loan, the prepayment charge or
penalty interest required to be paid by the Mortgagor in connection with a
prepayment of the related Mortgage Loan, as provided in the related Mortgage
Note or Mortgage, and as specified on the Mortgage Loan Schedule.
Primary Mortgage Insurance Policy: Each policy of primary mortgage guaranty
insurance (including any LPMI Policy) or any replacement policy therefor with
respect to any Mortgage Loan, in each case issued by an insurer acceptable to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Principal Distribution Amount: For any Distribution Date, the Basic Principal
Distribution Amount for such Distribution Date minus the excess, if any, of (i)
the Overcollateralization Amount for such Distribution Date over (ii) the Target
Overcollateralization Amount.
Principal Prepayment: Any Mortgagor payment of principal or other recovery of
principal on a Mortgage Loan that is recognized as having been received or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the related Servicing Agreement, as applicable.
Principal Remittance Amount: For any Distribution Date and the Mortgage Loans to
the extent of funds available therefor, the excess of:
(a) the sum of:
(i) each payment of principal on a Mortgage Loan due on the
related Due Date and received by the Servicers on or prior to the
related Determination Date, and any Advances with respect thereto,
(ii) all Principal Prepayments received by the applicable
Servicer during the related Prepayment Period,
(iii) Condemnation Proceeds, Insurance Proceeds and net
Liquidation Proceeds allocable to principal and Subsequent Recoveries,
in each case, as actually collected by the applicable Servicer during
the related Prepayment Period,
(iv) the Repurchase Price allocable to principal received during
the related Prepayment Period,
37
(v) any Substitution Adjustment Amounts paid during the related
Prepayment Period, and
(vi) on the Distribution Date on which the Mortgage Loans and
related REO Property are purchased in accordance with Article XI, the
portion of the Termination Price allocable to principal;
over
(b) the sum of:
(i) amounts available for reimbursement to the Servicers and/or
the Master Servicer of Advances and expenses pursuant to the
applicable Servicing Agreement and amounts reimbursable or payable to
the Master Servicer, the Securities Administrator, the Custodian and
the Trustee pursuant to this Agreement, and
(ii) the Deferred Interest arising during the related Due Period.
Private Certificate: Any Class of Certificates that is not registered under the
Securities Act.
Prospectus: The prospectus supplement, dated September 27, 2006, together with
the accompanying prospectus dated July 20, 2006, relating to the Offered
Certificates.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted for a Deleted
Mortgage Loan which must, on the date of such substitution, meet the following
criteria:
(a) have a Stated Principal Balance, after deduction of all Scheduled
Monthly Payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Stated Principal Balance), not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan;
(b) have a Mortgage Rate not less than, and not more than two
percentage points (2%) greater than, the Mortgage Rate of the Deleted
Mortgage Loan;
(c) have a remaining term to maturity not greater than and not more
than one year less than that of the Deleted Mortgage Loan;
(d) comply with each representation and warranty set forth in Section
2.07;
(e) be of the same type as the Deleted Mortgage Loan;
(f) have a Gross Margin not less than that of the Deleted Mortgage
Loan, if the Deleted Mortgage Loan was an Adjustable Rate Mortgage Loan;
(g) have at least the same lien priority as the lien priority of the
Deleted Mortgage Loan;
38
(h) have the same Index as the Deleted Mortgage Loan;
(i) have a credit score not less than that of the Deleted Mortgage
Loan;
(j) have an LTV not greater than that of the Deleted Mortgage Loan;
(k) have a Prepayment Premium with a term and an amount at least equal
to the Prepayment Premium of the Deleted Mortgage Loan; and
(l) have a credit grade not lower in quality than that of the Deleted
Mortgage Loan.
Rating Agency: Each of ▇▇▇▇▇'▇ and S&P.
Realized Loss: With respect to any (1) Liquidated Mortgage Loan, an amount (not
less than zero or more than the Stated Principal Balance of the Mortgage Loan)
as of the date of such liquidation, equal to (a) the Stated Principal Balance of
the Liquidated Mortgage Loan as of the date of such liquidation, plus (b)
interest on the Stated Principal Balance of such Liquidated Mortgage Loan at the
Adjusted Net Mortgage Rate from the Due Date as to which interest was last paid
or advanced (and not reimbursed) to Certificateholders up to the Due Date in the
month in which Liquidation Proceeds related to such Mortgage Loan are required
to be distributed, minus (c) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred (to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan), (2) Mortgage Loan which has become the subject of a
Deficient Valuation, if the principal amount due under the related Mortgage Note
has been reduced, the difference between the principal balance of the Mortgage
Loan outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation and (3)
Mortgage Loan which has become the subject of a Debt Service Reduction, the
amount, if any, by which the principal portion of the related Scheduled Monthly
Payment has been reduced.
Record Date: As to any Distribution Date and with respect to all Certificates
(other than the Class C Certificates, the Class R Certificates and the Class RX
Certificates), the last Business Day preceding such Distribution Date. With
respect to the Class C Certificates, Class R Certificates and Class RX
Certificates, the last Business Day of the calendar month preceding the month in
which the Distribution Date occurs.
Regular Certificates: Any of the Class A Certificates, Class B Certificates and
Class C Certificates.
Regular Interest: A "regular interest" in a REMIC within the meaning of Section
860G(a)(1) of the Code.
Regulation AB: Subpart 229.1100 Asset Backed Securities (Regulation AB), 17
C.F.R. Sections 229.110-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
39
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Reinvestment Agreement: A guaranteed reinvestment agreement from a bank,
insurance company or other corporation or entity organized under the laws of the
United States or any state thereof under which no payments are subject to any
withholding tax or, if subject to withholding tax imposed by any jurisdiction,
the obligor thereunder is required to make "gross up" payments that cover the
full amount of any such withholding tax on an after-tax basis; provided that
such agreement provides that it is terminable by the purchaser, without premium
or penalty, in the event that the rating assigned to such agreement by any
Rating Agency is at any time lower than the rating required pursuant to the
terms of this Agreement to be assigned to such agreement in order to permit the
purchase thereof.
Relevant Servicing Criteria: The Servicing Criteria applicable to the various
parties, as set forth on Exhibit 1122 attached hereto. For clarification
purposes, multiple parties can have responsibility for the same Relevant
Servicing Criteria. With respect to a Servicing Function Participant engaged by
the Master Servicer, the Securities Administrator or the Custodian, the term
"Relevant Servicing Criteria" may refer to a portion of the Relevant Servicing
Criteria applicable to such parties.
Relief Act: The Servicemembers Civil Relief Act, as such may be amended from
time to time, or any similar state or local laws.
Relief Act Reductions: With respect to any Distribution Date and any Mortgage
Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (a) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (b) interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC: A "real estate mortgage investment conduit" within the meaning of Section
860D of the Code.
REMIC I Interest Loss Allocation Amount: With respect to any Distribution Date,
an amount (subject to adjustment based on the actual number of days elapsed in
the respective Accrual Periods for the indicated Uncertificated REMIC I Regular
Interests for such Distribution Date) equal to (a) the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTAA minus the Marker Rate, divided by (b) 12.
REMIC I Overcollateralization Target Amount: 1.0% of the Target
Overcollateralization Amount.
REMIC I Overcollateralized Amount: With respect to any date of determination,
(i) 1.0% of the aggregate Uncertificated Principal Balance of the Uncertificated
REMIC I Regular Interests minus (ii) the aggregate Uncertificated Principal
Balance of each Uncertificated REMIC I Regular Interest (other than
Uncertificated REMIC I Regular Interest LTAA and Uncertificated REMIC I Regular
Interest LTZZ) in each case as of such date of determination.
40
REMIC I Principal Loss Allocation Amount: With respect to any Distribution Date,
an amount equal to the product of (i) aggregate Stated Principal Balance of the
Mortgage Loans and REO Properties then outstanding and (ii) one minus a
fraction, the numerator of which is two times the aggregate Uncertificated
Principal Balance of each Uncertificated REMIC I Regular Interest (other than
Uncertificated REMIC I Regular Interest LTAA and Uncertificated REMIC I Regular
Interest LTZZ) and the denominator of which is the aggregate Uncertificated
Principal Balance of each Uncertificated REMIC I Regular Interest (other than
Uncertificated REMIC I Regular Interest LTAA).
REMIC Provisions: Provisions of the federal income tax law relating to real
estate mortgage investment conduits, which appear at Sections 860A through 860G
of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REMIC Regular Interest: Any Uncertificated REMIC I Regular Interest or
Uncertificated REMIC II Regular Interest.
REO Disposition: The sale or other disposition of REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO Property
pursuant to the applicable Servicing Agreement.
REO Property: A Mortgaged Property acquired by a Servicer on behalf of the
Issuing Entity through foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Reportable Event: As defined in Section 4.05(a)(iii).
Repurchase Price: With respect to any Mortgage Loan required to be purchased
pursuant to this Agreement (other than pursuant to Section 11.01), an amount
equal to the sum of (a) 100% of the Stated Principal Balance of the Mortgage
Loan on the date of such purchase, (b) accrued interest thereon at the
applicable Mortgage Rate from the date through which interest was last paid by
the Mortgagor to the Due Date in the month following the month in which the
Repurchase Price is to be distributed to the Certificateholders, (c) any
unreimbursed Advances and (d) any costs and damages incurred in connection with
the violation by such Mortgage Loan of any predatory or anti-abusive lending
law.
Request for Release: The Request for Release submitted by the related Servicer
to the Trustee or the Custodian on behalf of the Trustee, in the form of Exhibit
D or in the form attached as an exhibit to the Custodial Agreement.
Reserve Account: The trust account created and maintained by the Securities
Administrator pursuant to Section 8.02. The Reserve Account shall not be an
asset of any REMIC formed under this Agreement.
Residual Certificates: The Class R Certificates and the Class RX Certificates.
Residual Interest: The sole class of "residual interests" in a REMIC within the
meaning of Section 860G(a)(2) of the Code.
41
Responsible Officer: With respect to:
(a) the Trustee, any managing director, any director, vice president, any
assistant vice president, any associate, any assistant secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers who at such time shall be
officers to whom, with respect to a particular matter, the matter is referred
because of the officer's knowledge of and familiarity with the particular
subject and who has direct responsibility for the administration of this
Agreement;
(b) the Securities Administrator, any vice president, any managing
director, any director, any associate, any assistant vice president, any
assistant secretary, any trust officer or any other officer or employee of the
Securities Administrator customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with respect
to a particular matter, such matter is referred because of such officer's or
employee's knowledge of and familiarity with the particular subject and in each
case who shall have direct responsibility for the administration of this
Agreement; and
(c) the Master Servicer, any vice president, any managing director, any
director, any associate, any assistant vice president, any assistant secretary,
any trust officer or any other officer or employee of the Master Servicer
customarily performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter, such
matter is referred because of such officer's or employee's knowledge of and
familiarity with the particular subject and in each case who shall have direct
responsibility for the administration of this Agreement.
Rolling Three Month Delinquency Rate: With respect to any Distribution Date, the
average of the Delinquency Rates for each of the three (or a shorter period, in
the case of the first and second Distribution Dates) immediately preceding Due
Periods.
Rule 144A Letter: As defined in Section 9.02.
S&P: Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act: The ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended from time to
time, and the rules and regulations of the Commission promulgated thereunder
(including any interpretations thereof by the Commission's staff).
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification: A written certification signed by an officer of
the Master Servicer that complies with (i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as
amended from time to time, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d),
as in effect from time to time; provided that if, after the Closing Date (a) the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 is amended, (b) the Rules referred to in clause (ii)
are modified or superceded by any subsequent statement, rule or regulation of
the Commission or any statement of a division thereof, or (c) any future
releases, rules and regulations are published by the Commission from time to
time pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, which in any such case affects
the form or substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous that then form of the required certification as of the
Closing Date, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification shall be as agreed to by the
Master Servicer, the Depositor and the
42
Seller following a negotiation in good faith to determine how to comply with any
such new requirements.
Scheduled Monthly Payment: Each scheduled payment of principal and interest (or
of interest only, if applicable) to be paid by the Mortgagor on a Mortgage Loan,
as reduced (except where otherwise specified herein) by the amount of any
related Debt Service Reduction or pursuant to the Relief Act (excluding all
amounts of principal and interest that were due on or before the Cut-off Date
whenever received) and, in the case of an REO Property, an amount equivalent to
the Scheduled Monthly Payment that would have been due on the related Mortgage
Loan if such Mortgage Loan had remained in existence.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: ▇▇▇▇▇ Fargo Bank, N.A., or any successor or assigns in
its capacity as Securities Administrator under this Agreement.
Seller: Maia Mortgage Finance Statutory Trust, or any successor.
Senior Principal Distribution Amount: For any applicable Distribution Date on or
after the Stepdown Date as long as no Trigger Event has occurred with respect to
such Distribution Date, an amount equal to the lesser of (A) the aggregate
Principal Distribution Amount for such Distribution Date and (B) the excess (if
any) of (x) the aggregate Certificate Principal Balance of the Class A
Certificates immediately prior to such Distribution Date over (y) the lesser of
(a) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to the portion of the
Scheduled Monthly Payments allocable to principal due the related Due Date, to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period, and after reduction for Realized
Losses incurred during the related Prepayment Period) multiplied by (i) for any
Distribution Date occurring prior to the Distribution Date in September 2012,
80.625% and (ii) for any Distribution Date occurring on or after the
Distribution Date in September 2012, 84.500% and (b) the amount, if any, by
which (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to the portion of the
Scheduled Monthly Payments allocable to principal due the related Due Date, to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period, and after reduction for Realized
Losses incurred during the related Prepayment Period) exceeds (ii) the sum of
0.50% of the Cut-off Date Balance and the aggregate Additional Negative
Amortization Amount.
Servicer: Any of Countrywide Home Loans Servicing LP, Residential Funding
Corporation, GMAC Mortgage ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ Mortgage Corporation, Central
Mortgage Company, Inc. and IndyMac Bank, F.S.B., and their successors in
interest or assigns or any successor to the Servicers under the Servicing
Agreements.
Servicer Event of Default: Any one of the conditions or circumstances enumerated
in the applicable Servicing Agreement.
Servicer Remittance Date: The day in each calendar month on which each Servicer
is required to remit payments to the Distribution Account, as provided in the
related Servicing Agreement.
43
Servicer Report: The reports provided by each Servicer to the Master Servicer
and the Securities Administrator pursuant to the related Servicing Agreement.
Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses (including reasonable attorneys' fees and disbursements)
other than Monthly Advances incurred prior to, on or after the Cut-off Date in
the performance by each Servicer of its servicing obligations, including, but
not limited to, the cost of (a) the inspection, maintenance, preservation,
restoration and protection of any Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, in respect of a particular
Mortgage Loan, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS(R)
System, (c) the management (including reasonable fees in connection therewith)
and liquidation of any REO Property, (d) compliance with the obligations under
that applicable Servicing Agreement and (e) obtaining any legal documentation
required to be included in the Mortgage File and/or correcting any outstanding
title issues (i.e., any lien or encumbrance on the Mortgaged Property that
prevents the effective enforcement of the intended lien position) reasonably
necessary for each Servicer to perform its obligations under this Agreement.
Servicing Advances also include any reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by each Servicer in connection with
executing and recording instruments of satisfaction, deeds of reconveyance or an
Assignment of Mortgage to the extent not recovered from the Mortgagor or
otherwise payable under this Agreement.
Servicing Agreement: Any of the following agreements:
(a) the Standard Terms and Provisions of Sale and Servicing Agreement
dated as of March 30, 2006 by and between Residential Funding Corporation
as seller and master servicer and Luminent Mortgage Capital, Inc., Mercury
Mortgage Finance Statutory Trust and the Seller as the initial owner, as
supplemented by the Reference Agreements dated as of July 28, 2006 and
August 30, 2006 by and between Residential Funding Corporation as seller
and master servicer and Maia Mortgage Finance Statutory Trust as the
initial owner, as amended by the Reconstituted Servicing Agreement dated as
of September 28, 2006 by and between Residential Funding Corporation, the
Depositor, the Seller and ▇▇▇▇▇ Fargo Bank, N.A. (and acknowledged by the
Trustee);
(b) the Amended and Restated Purchase, Warranties and Servicing
Agreement dated as of April 24, 2006 by and between EMC Mortgage
Corporation as the company and Luminent Mortgage Capital, Inc., Mercury
Mortgage Finance Statutory Trust and the Seller as purchasers, as amended
by the Reconstituted Servicing Agreement dated as of September 28, 2006 by
and between EMC Mortgage Corporation, the Depositor, the Seller and ▇▇▇▇▇
Fargo Bank, N.A. (and acknowledged by the Trustee);
(c) the Flow Sale and Servicing Agreement dated as of April 21, 2006
by and between IndyMac Bank, F.S.B. as the company and Luminent Mortgage
Capital, Inc., Mercury Mortgage Finance Statutory Trust and the Seller as
purchasers, as amended by the Reconstituted Servicing Agreement dated as of
September 28, 2006 by and between IndyMac Bank, F.S.B., the Depositor, the
Seller and ▇▇▇▇▇ Fargo Bank, N.A. (and acknowledged by the Trustee);
44
(d) the Amended and Restated Master Mortgage Loan Purchase and
Servicing Agreement dated as of December 15, 2003 by and between
Countrywide Home Loans, Inc. as the company and Citigroup Global Markets
Realty Corp. as the purchaser, as amended by Amendment Reg AB to the
Amended and Restated Master Mortgage Loan Purchase and Servicing Agreement
dated as of February 28, 2006 by and between Citigroup Global Markets
Realty Corp. as purchaser and Countrywide Home Loans, Inc., as amended by
the Assignment, Assumption and Recognition Agreement dated August 15, 2006
among Citigroup Global Markets Realty Corp. as assignor, Maia Mortgage
Finance Statutory Trust as assignee and Countrywide Home Loans, Inc., as
further amended by the Reconstituted Servicing Agreement dated as of
September 28, 2006 by and between Countrywide Home Loans, Inc., Countrywide
Home Loans Servicing LP, the Depositor, the Seller and ▇▇▇▇▇ Fargo Bank,
N.A. (and acknowledged by the Trustee);
(e) the Servicing Agreement dated as of July 17, 2006 by and between
Central Mortgage Company as servicer and Luminent Mortgage Capital, Inc.,
Maia Mortgage Finance Statutory Trust and Mercury Mortgage Finance
Statutory Trust as owner, as amended by the Reconstituted Servicing
Agreement dated as of September 28, 2006 by and between Central Mortgage
Company, the Depositor, the Seller and ▇▇▇▇▇ Fargo Bank, N.A. (and
acknowledged by the Trustee); or
(f) the Interim Servicing Agreement dated as of September 1, 2006 by
and between GMAC Mortgage Corporation as the company, Maia Mortgage Finance
Statutory Trust as the initial owner and ▇▇▇▇▇ Fargo Bank, N.A. as master
servicer and securities administrator (and acknowledged by the Trustee).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan and each Servicer, the amount
of the annual fee payable on account of servicing, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the applicable
Servicing Fee Rate and (b) the Stated Principal Balance of such Mortgage Loan as
of the first day of the related Due Period. The Servicing Fee is payable solely
from the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds) of such
Scheduled Monthly Payment collected by the Servicer, or as otherwise provided
under the applicable Servicing Agreement.
Servicing Fee Rate: With respect to the Mortgage Loans serviced by Residential
Funding Corporation, 0.425% per annum. With respect to all the other Mortgage
Loans, 0.375% per annum.
Servicing File: With respect to each Mortgage Loan, the file retained by each
Servicer consisting of originals of all documents in the Mortgage File which are
not delivered to the Custodian and copies of the Mortgage Loan Documents, the
originals of which are delivered to the Custodian on behalf of the Trustee.
45
Servicing Function Participant: Any Subservicer or Subcontractor of a Servicer,
the Master Servicer, the Trustee, the Custodian or the Securities Administrator,
respectively.
Servicing Officer: Any officer of a Servicer involved in or responsible for the
administration and servicing of the Mortgage Loans whose name appears on a list
of servicing officers furnished by each Servicer on the Closing Date to the
Master Servicer upon request, as such list may from time to time be amended.
Sponsor: Luminent Mortgage Capital, Inc.
Startup Day: As defined in the Preliminary Statement.
Stated Principal Balance: With respect to any Mortgage Loan as of any date of
determination, outstanding principal balance as of the Cut-off Date, after
giving effect to the principal portion of any Scheduled Monthly Payments due on
or before such date, whether or not received, increased by any Deferred Interest
in respect of such Mortgage Loan on or prior to such date of determination and
reduced by the sum of (a) the principal portion of all Scheduled Monthly
Payments due on or before the Due Date in the Due Period immediately preceding
such date of determination, whether or not received, and (b) all amounts
allocable to unscheduled principal payments received on or before the last day
of the Due Period immediately preceding such date of determination.
Stepdown Date: The later to occur of (a) the Distribution Date occurring in
October 2009 and (b) the first Distribution Date on which the Credit Enhancement
Percentage for the Class A Certificates (calculated for this purpose only after
taking into account distribution of principal on the Mortgage Loans, but prior
to any distribution of the Principal Distribution Amount to the Certificates) is
greater than or equal to (x) prior to the Distribution Date in September 2012 or
on the first Distribution Date following the Distribution Date on which the
principal balances of the Class A Certificates are reduced to zero, 19.375% and
(z) thereafter, 15.50%.
Subcontractor: Any vendor, subcontractor or other Person that is not responsible
for the overall servicing (as servicing is commonly understood by participants
in the mortgage-backed securities market) of the Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to the Mortgage Loans under the direction or authority of a Servicer or
a Subservicer, the Master Servicer, the Trustee, the Custodian or the Securities
Administrator.
Subsequent Recovery: Any amount (net of reimbursable expenses) received on a
Mortgage Loan subsequent to such Mortgage Loan being determined to be a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior month.
Subservicer: Any Person that services the Mortgage Loans on behalf of any
Servicer or any Subcontractor and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the related
Servicer under this Agreement or the applicable Servicing Agreement that are
identified in Item 1122(d) of Regulation AB.
Substituting Party: As defined in Section 2.10(a).
46
Substitution Adjustment Amount: As defined in Section 2.10(c).
Supplemental Interest Trust: The trust created pursuant to Section 8.04 and
designated as the "Supplemental Interest Trust," consisting of the Cap
Agreement, the Supplemental Interest Trust Trustee's rights under the Cap
Agreement and the Cap Account. The Supplemental Interest Trust is not an asset
of any REMIC created hereunder.
Supplemental Interest Trust Trustee: ▇▇▇▇▇ Fargo Bank, N.A., or any successor
Supplemental Interest Trust Trustee appointed as herein provided.
Target Overcollateralization Amount: The sum of (a) the aggregate Additional
Negative Amortization Amount and (b) (i) prior to the Stepdown Date, 0.60% of
the Cut-off Date Balance of the Mortgage Loans or (ii) on or after the Stepdown
Date, an amount equal to the greater of (x) on any Distribution Date (i) prior
to the Distribution Date in September 2012, 1.50% of the aggregate Stated
Principal Balance of the Mortgage Loans and (ii) on and after the Distribution
Date in September 2012, 1.20% of the aggregate Stated Principal Balance of the
Mortgage Loans, and (v) 0.50% of the Cut-off Date Balance of the Mortgage Loans;
provided however that if a Trigger Event is in effect, the target
overcollateralization amount with respect to the Mortgage Loans will be the same
as on the prior Distribution Date. In the event that the target
overcollateralization amount after the Stepdown Date is greater than the initial
target overcollateralization amount, the overcollateralization will then be
limited to the product of (a) 0.60% and (b) the Cut-off Date Balance of the
Mortgage Loans.
Tax Matters Person: The person designated as "tax matters person" in the manner
provided under Treasury regulation Section 1.860F-4(d) and temporary Treasury
regulation Section 301.6231(a)(7)1T. Initially, the Tax Matters Person for
REMICs I and II shall be the Holder of the Class R Certificates, and the Tax
Matters Person for REMICs III and IV shall be the Holder of the Class RX
Certificates. The Securities Administrator will be appointed as agent of each
such Tax Matters Person pursuant to Section 12.01(k) herein unless otherwise
designated.
Termination Price: As defined in Section 11.01.
Trigger Event: With respect to any Distribution Date after the Stepdown Date, a
Trigger Event shall have occurred if either (a) the Rolling Three Month
Delinquency Rate as of the last day of the related Due Period equals or exceeds
37% of the sum of (i) the aggregate Certificate Principal Balances of the Class
B Certificates and (ii) the Overcollateralization Amount, both determined as of
such Distribution Date after giving effect to all distributions to be made on
such Distribution Date, or (b) if the Cumulative Realized Loss Percentage
exceeds:
47
Distribution Date
Occurring In Percentage
----------------------------- ----------
October 2009 - September 2010 0.40%
October 2010 - September 2011 0.70%
October 2011 - September 2012 0.95%
October 2012 - September 2013 1.35%
October 2013 and thereafter 1.45%
Trust Fund: As defined in Section 2.06.
Trustee: HSBC Bank USA, National Association and, if a successor trustee is
appointed hereunder, such successor.
Trust REMIC: Each REMIC created under the terms of this Agreement.
UCC: The Uniform Commercial Code as enacted in the relevant jurisdiction.
Uncertificated Interest: With respect to any REMIC Regular Interest for any
Distribution Date, one month's interest at the REMIC Remittance Rate applicable
to such REMIC Regular Interest for such Distribution Date, accrued on the
Uncertificated Principal thereof immediately prior to such Distribution Date.
Uncertificated Interest in respect of any Uncertificated REMIC I Interest, and
the Class C Interest shall accrue on the basis of a 360-day year consisting of
twelve 30-day months. In addition, Uncertificated Interest with respect to each
Distribution Date, as to any REMIC Regular Interest shall be reduced by the
interest portions of Realized Losses, if any, allocated to such REMIC Regular
Interest.
Uncertificated Principal Balance: With respect to the Class C Interest an amount
equal to the excess, if any, of (A) the then aggregate Uncertificated Principal
Balance of the Uncertificated REMIC I Regular Interests over (B) the then
aggregate Certificate Principal Balance of the Class A Certificates and the
Class B Certificates then outstanding.
With respect to each other REMIC Regular Interest, the amount of any REMIC
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC Regular Interest shall
equal the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC Regular Interest shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date and, if and to the extent necessary and appropriate, shall be
further reduced on such Distribution Date by Realized Losses. The Uncertificated
Principal Balance of REMIC I Regular Interest LTZZ shall be increased by
interest deferrals as provided in Section 8.07. The Uncertificated Principal
Balance of each REMIC Regular Interest shall never be less than zero.
Uncertificated REMIC I Pass-Through Rates: As of any Distribution Date, the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans,
weighted on the basis of the
48
Uncertificated Principal Balance of such Uncertificated REMIC I Regular
Interests for each such Distribution Date.
Uncertificated REMIC I Regular Interests: Uncertificated REMIC I Regular
Interest LTAA, Uncertificated REMIC I Regular Interest LTA1, Uncertificated
REMIC I Regular Interest LTA2A, Uncertificated REMIC I Regular Interest LTA2B,
Uncertificated REMIC I Regular Interest LTA3, Uncertificated REMIC I Regular
Interest LTB1, Uncertificated REMIC I Regular Interest LTB2, Uncertificated
REMIC I Regular Interest LTB3, Uncertificated REMIC I Regular Interest LTB4,
Uncertificated REMIC I Regular Interest LTB5, Uncertificated REMIC I Regular
Interest LTB6, Uncertificated REMIC I Regular Interest LTB7, Uncertificated
REMIC I Regular Interest LTB8, Uncertificated REMIC I Regular Interest LTB9 and
Uncertificated REMIC I Regular Interest LTZZ. Each such interest represents the
beneficial ownership interests in REMIC I as a Regular Interest in REMIC I. Each
REMIC I Regular Interest shall accrue interest at the related Uncertificated
REMIC I Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
Uncertificated REMIC II Regular Interests: The Class A-1, Class A-2A, Class
▇-▇▇, ▇▇▇▇▇ ▇-▇, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7, Class B-8 and Class B-9 Interest, each of which represents the
beneficial ownership interests in REMIC II as a Regular Interest in REMIC II.
Each REMIC II Regular Interest shall accrue interest at its related Pass-Through
Rate in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
Underwriter's Exemption: Any exemption listed in footnote 1 of, and amended by,
PTE 2002-41 at 67 Fed. Reg. 54487 (August 22, 2002), or any substantially
similar successor administrative exemption granted by the U.S. Department of
Labor.
Underwriting Guidelines: Those underwriting guidelines employed by the Seller
with respect to Mortgage Loans.
Unpaid Interest Distribution Amount: For any Distribution Date and any Class of
Certificates, the pro rata share of such Class (based upon the ratio of the
Certificate Principal Balance of such Class, determined as of the day
immediately preceding such Distribution Date, to the aggregate Certificate
Principal Balances of all Classes of Certificates then Outstanding, determined
as of the day immediately preceding such Distribution Date) of the sum of (i)
the excess, if any, of the aggregate of the Prepayment Interest Shortfalls for
such Distribution Date over the aggregate of the Compensating Interest Payments
received for such Distribution Date and (ii) the aggregate of the Relief Act
Reductions for such Distribution Date.
Unpaid Realized Loss Amount: For any Class of Certificates and any Distribution
Date, the excess of (a) the aggregate Realized Losses allocated to such Class
for such Distribution Date and all prior Distribution Dates over (y) the
cumulative amount of any Excess Cash Flow allocated to such Class in reduction
of such Unpaid Realized Loss Amount for all prior Distribution Dates.
49
U.S. Person: (a) A citizen or resident of the United States, (b) a corporation
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, including an entity treated as a
corporation for federal income tax purposes (c) a partnership (unless Treasury
regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a partnership for federal income tax purposes,
none of the interests in which are owned, directly or indirectly through one or
more intermediate entities, by a person that is not a U.S. Person within the
meaning this paragraph, (d) an estate the income of which is includible in gross
income for United States federal income tax purposes, regardless of its source,
(e) a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United States
fiduciaries have the authority to control all substantial decisions of the trust
(or to the extent provided in applicable Treasury regulations, certain trusts in
existence on August 20, 1996 that are eligible to be treated as United States
persons).
Voting Interests: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. As of any date of determination, the
Voting Interests shall be allocated 0.50% to the Class R Certificates and 0.50%
to the Class RX Certificates, 1% to the Class C Certificates, and the balance
among Holders of the Class A Certificates and the Class B Certificates in
proportion to the Certificate Principal Balance of their respective Certificates
on such date.
SECTION 1.02 Calculations With Respect to the Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect to
any Mortgage Loan in the Trust Fund shall be made based upon current information
as to the terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans provided by the Servicers to the Master
Servicer and the Securities Administrator. Payments and distributions to be made
by the Securities Administrator shall be based on information provided by the
Servicers. Neither the Trustee, the Master Servicer nor the Securities
Administrator shall be required to recompute, verify or recalculate the
information supplied to it by the Servicers.
SECTION 1.03 Calculations With Respect to Accrued Interest.
All calculations of interest described herein with respect to any Class of
Certificates, other than Class C Certificates, and the Uncertificated REMIC II
Regular Interests (other than the Class C Interest), shall be made on the basis
of an assumed 360-day year and the actual number of days in the related Accrual
Period. The Class C Certificates, the Class C Interest and the Uncertificated
REMIC I and REMIC II Regular Interests shall accrue interest on the basis of an
assumed 360-day year consisting of twelve 30-day months.
SECTION 1.04 Rules of Construction.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined;
50
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation;"
(d) the word "will" shall be construed to have the same meaning and effect
as the word "shall;"
(e) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein);
(f) any reference herein to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's permitted successors and
assigns or such Person's permitted successors in such capacity, as the case may
be; and
(g) all references in this instrument to designated "Sections," "clauses"
and other subdivisions are to the designated Sections, clauses and other
subdivisions of this instrument as originally executed, and the words "herein,"
"hereof," "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular Section, clause or other subdivision.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
SECTION 2.01 Conveyance of Mortgage Loans to the Depositor.
On the Closing Date, in exchange for the Certificates or the net proceeds
thereof, the Seller does hereby sell, transfer, assign, or set over, deposit
with and otherwise convey without recourse (except as provided herein), and the
Depositor does hereby purchase, all right, title and interest of the Seller in
and to the Mortgage Loans listed on the Mortgage Loan Schedule, having a Cut-off
Date Balance as set forth in such Mortgage Loan Schedule; provided, however that
(i) the Seller does not convey to the Depositor the Seller's right to receive
amounts in excess of the Repurchase Price if a Mortgage Loan is repurchased by
an Originator; and (ii) the Seller only conveys Prepayment Premiums to the
extent that it acquired the rights thereto from the related Originator.
(a) The Depositor shall be entitled to (i) all Scheduled Monthly Payments
of principal due after the Cut-off Date, (ii) all other recoveries of principal
collected after the Cut-off Date (less scheduled payments of principal due on or
before the Cut-off Date and collected after the Cut-off Date), (iii) all
Scheduled Monthly Payments of interest due after the Cut-off Date (minus that
portion of any such payment which is allocable to the period prior to the
Cut-off Date) and (iv) all Prepayment Premiums to the extent conveyed. Scheduled
Monthly Payments prepaid with respect to a Due Date after the Cut-off Date shall
not be applied to the principal balance as of the Cut-off Date, but the Seller
shall remit any such prepaid amounts to the related Servicer for deposit into
the Custodial Account for the benefit of the Depositor.
51
(b) Concurrently with the execution and delivery of this Agreement, the
Seller hereby assigns to the Depositor all of its rights and interest (but none
of its obligations) under the Servicing Agreements and Mortgage Loan Purchase
Agreements. The Depositor hereby accepts such assignment, and shall be entitled
to exercise all such rights of the Seller under the such Agreements as if the
Depositor had been a party to each such agreement.
(c) In the case of Mortgage Loans that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Seller shall remit to the
related Servicer for deposit in the Custodial Account the portion of any amount
so prepaid that is required to be deposited in the Custodial Account pursuant to
the applicable Servicing Agreement.
(d) Upon the sale of the Mortgage Loans, the ownership of each Mortgage
Note, the related Mortgage and the related Mortgage File shall vest immediately
in the Depositor, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or which come into the possession of the
Seller shall vest immediately in the Depositor and shall be retained and
maintained by the Seller, in trust, at the will of the Depositor and only in
such custodial capacity.
(e) The Seller shall deliver the Mortgage Loan Schedule, the Mortgage Loan
File and Mortgage Loan Documents to be purchased on the related Closing Date to
the Custodian at least three Business Days prior to such Closing Date.
SECTION 2.02 Conveyance of Mortgage Loans to the Issuing Entity.
(a) On the Closing Date, in exchange for the Certificates, the Depositor
does hereby sell, transfer, assign, set over, deposit with and otherwise convey
to the Trustee, for the benefit of the Certificateholders, without recourse
(except as otherwise provided herein), all right, title and interest of the
Depositor in and to the Mortgage Loans purchased by the Depositor from the
Seller.
(b) The Issuing Entity shall be entitled to all payments on the Mortgage
Loans as provided in Section 2.01(a).
(c) Concurrently with the execution and delivery of this Agreement, the
Depositor hereby assigns to the Issuing Entity all of its rights and interest
(but none of its obligations) under the Servicing Agreements and Mortgage Loan
Purchase. The Issuing Entity hereby accepts such assignment, and shall be
entitled to exercise all such rights of the Depositor under such Agreements as
if the Issuing Entity had been a party to each such agreement.
(d) Upon the issuance of the Certificates, the ownership of each Mortgage
Note, the related Mortgage and the related Mortgage File shall vest immediately
in the Issuing Entity, and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall vest immediately in the Issuing Entity and shall
be retained and maintained by the Seller, in trust, at the will of the Issuing
Entity and only in such custodial capacity.
(e) In connection with such transfer and assignment of the Mortgage Loans,
the Depositor does hereby deliver to, and deposit with, or cause to be delivered
to and deposited with
52
the Custodian, on behalf of the Trustee, for the benefit of the
Certificateholders, the Mortgage File with respect to each Mortgage Loan, and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Depositor shall vest
immediately in the Trustee for the benefit of the Certificateholders and shall
be retained and maintained by the Depositor, in trust, at the will of the
Trustee for the benefit of the Certificateholders and only in such custodial
capacity.
SECTION 2.03 Assignment of Mortgage Loans.
(a) The Seller shall cause an Assignment of Mortgage with respect to each
Mortgage Loan (other than a MERS Designated Mortgage Loan) to be completed in
the form and substance acceptable for recording in the relevant jurisdiction,
such assignment shall either be in blank or be endorsed to "HSBC Bank USA,
National Association, as Trustee of the Luminent Mortgage Trust 2006-6, Mortgage
Pass-Through Certificates, Series 2006-6, without recourse," on or prior to the
Closing Date; provided, however, that such Assignments of Mortgage Loans need
not be recorded unless and until the Trustee is advised by a Rating Agency that
such Assignment of Mortgage is required to be recorded to protect the Trustee's
interest in the Mortgage Loans. Any such recordation of an Assignment of
Mortgage shall be effected at the expense of the Seller.
(b) In connection with the assignment of any MERS Designated Mortgage Loan,
the Seller agrees that, on or prior to the Closing Date, the Seller will cause
the MERS(R) System to indicate that such Mortgage Loans have been assigned by
the Seller to the Depositor which has assigned such Mortgage Loans to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the code in the field that identifies the specific Trustee and the code in the
field "Pool Field" that identifies the series of the Certificates for which such
Mortgage Loans serve as collateral. The Seller further agrees that it will not,
and will not permit any Servicer to, and each of the Servicers and the Master
Servicer agrees that it will not, alter the codes referenced in this paragraph
with respect to any MERS Designated Mortgage Loan during the term of this
Agreement unless and until such MERS Designated Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
SECTION 2.04 Books and Records.
(a) To the extent provided in the Servicing Agreements: The contents of
each Servicing File are and shall be held in trust by the related Servicer for
the benefit of the Trustee on behalf of the Certificateholders. The related
Servicer shall take all necessary steps to ensure that the documents required to
be included in the Servicing File are complete and shall maintain the Servicing
File as required by this Agreement, Accepted Servicing Practices and applicable
law. Possession of each Servicing File by the related Servicer is at the will of
the Trustee for the sole purpose of servicing the related Mortgage Loan and such
retention and possession by the Seller is in a custodial capacity only. Each
Servicer shall release its custody of the contents of any Servicing File only in
accordance with written instructions from the Trustee, unless such release is
required as incidental to the Seller's servicing of the Mortgage Loans or is in
connection with the transfer of servicing or a repurchase of any Mortgage Loan.
53
(b) To the extent provided in the Servicing Agreements: All original
documents relating to the Mortgage Loans that are not delivered to the
Custodian, to the extent delivered to the related Servicer, are and shall be
held by such Servicer in trust for the benefit of the Trustee on behalf of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian on behalf of the Trustee.
(c) To the extent provided in the Servicing Agreements: Upon and after a
sale of Mortgage Loans to the Trustee for the benefit of the Certificateholders,
all proceeds arising out of the Mortgage Loans, as provided in Section 2.01(a)
shall be received and held by the related Servicer in trust for the benefit of
the Trustee on behalf of the Certificateholders.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Servicer or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
SECTION 2.05 Review of Documentation.
(a) On the Closing Date, the Custodian will execute and deliver to the
Depositor, the related Servicer and the Trustee an Initial Certification with
respect to the Mortgage Loans. Based on its review and examination, and only as
to the documents identified in the Initial Certification, the Custodian will
acknowledge that (i) such documents appear regular on their face and relate to
such Mortgage Loan and (ii) with respect to each MERS Designated Mortgage Loan,
the MERS number on the Mortgage Loan Schedule matches the MERS number on the
Mortgage for the related Mortgage File. The Custodian shall not be under any
duty or obligation to inspect, review or examine such documents, instruments,
Certificates or other papers to determine that the same are genuine,
enforceable, recordable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
(b) Within 90 days after the Closing Date, the Custodian will execute and
deliver to the Depositor, the Servicer, and the Trustee a Final Certification
with any applicable exceptions noted therein. The Custodian shall (i) determine
whether such documents are executed and endorsed, but shall be under no duty or
obligation to inspect, review or examine any such documents, instruments,
Certificates or other papers to determine that the same are valid, binding,
legally effective, properly endorsed, genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded or are in
recordable form or that they are other than what they purport to be on their
face and (ii) with respect to each MERS Designated Mortgage Loan, certify that
the related Mortgage File contains a MERS number. The Custodian shall not have
any responsibility for verifying the genuineness or the legal effectiveness of
or authority for any signatures of or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (a) above, the
Custodian discovers any document or documents constituting a part of a Mortgage
File is missing, does not appear regular on its face (i.e., is mutilated,
damaged, defaced, torn or otherwise physically altered) or appears to be
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, as
applicable (each, a "Material Defect"), the Custodian shall identify the
Mortgage
54
Loan to which such Material Defect relates in the Final Certification.
Within 90 days of its receipt of such notice, the Seller shall be required to
cure such Material Defect (and, in such event, the Seller shall provide the
Trustee and the Custodian with an Officer's Certificate confirming that such
cure has been effected). If the Seller does not effect a cure within such 90-day
period, it shall repurchase the related Mortgage Loan from the Trust Fund at the
Repurchase Price; provided, however, that the Seller may, in lieu of
repurchasing a Mortgage Loan, substitute for such Mortgage Loan a Qualified
Substitute Mortgage Loan subject to the provisions of Section 2.10, provided
that such substitution occurs within two years of the Closing Date. The failure
of the Trustee to deliver, or cause the Custodian to deliver, the Final
Certification within 90 days from the Closing Date shall not affect or relieve
the Seller of its obligation to repurchase any Mortgage Loan pursuant to this
Section 2.05 or any other Section of this Agreement requiring the repurchase of
Mortgage Loans from the Trust Fund.
(d) Notwithstanding anything to the contrary contained herein, the parties
hereto acknowledge that the functions of the Custodian with respect to the
custody, acceptance, inspection and release of Mortgage Files, including but not
limited to certain insurance policies and documents contemplated by this
Agreement, and preparation and delivery of the certifications described in
Section 2.05 shall be performed by the Custodian pursuant to the terms and
conditions of the Custodial Agreement.
SECTION 2.06 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the assets
conveyed and sold to it hereunder (the "Trust Fund"). Concurrently with such
transfer and assignment, the Securities Administrator has executed the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund, and, upon the written order of the
Depositor, has authenticated the same Certificates. The Trustee agrees to hold
the Trust Fund and exercise the rights referred to above for the benefit of all
present and future Holders of the Certificates and to perform the duties set
forth in this Agreement in accordance with the standard of care set forth
herein.
SECTION 2.07 Representations and Warranties of the Seller with Respect to
the Mortgage Loans.
(a) The Seller hereby makes the following representations and warranties to
the Trustee on behalf of the Certificateholders as of the Closing Date with
respect to the Mortgage Loans:
(i) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws, including, but
not limited to, all applicable predatory and abusive lending laws
(ii) No Mortgage Loan is a "High Cost Loan" or "Covered Loan," as
applicable, (as such terms are defined in the then current Standard & Poor's
LEVELS(R) Glossary, Appendix E, in effect as of the Closing Date) and no
Mortgage Loan originated on or after October 1, 202 through March 6, 2003 is
governed by the Georgia Fair Lending Act; and
55
(iii) With respect to each representation and warranty with respect to
any Mortgage Loan made by the Originators in the Mortgage Loan Purchase
Agreements that is made as of the related Closing Date (as defined in the
applicable Mortgage Loan Purchase Agreement), no event has occurred since the
related Closing Date (as defined in the applicable Mortgage Loan Purchase
Agreement) that would render such representations and warranties to be untrue in
any material respect as of the Closing Date.
(b) Upon discovery or receipt of written notice by any party that (i) the
Seller or an Originator has breached any representation or warranty in respect
of a Mortgage Loan that materially and adversely affects the value of such
Mortgage Loan or the interest therein of the Certificateholders, or (ii) any
Mortgage Loan does not constitute a "qualified mortgage" within the meaning of
Section 860G(a)(3) and the related REMIC provisions of the Code, such party
shall promptly notify the Trustee in writing of such breach, and the Trustee
(and the Seller shall use its best efforts to enforce, and shall join the
Trustee in enforcing, any such obligation of any Originator) shall enforce the
Seller's or Originator's obligations hereunder and/or under any Mortgage Loan
Purchase Agreement, as applicable, to repurchase or, subject to Section 2.10,
substitute a Qualified Substitute Mortgage Loan for, the affected Mortgage Loan
on or prior to the Determination Date following the expiration of the 90-day
period following the earlier of the date on which the breach was discovered or
notice of the breach was received by the Trustee; provided, however, that, if
such breach cannot reasonably be cured within such 90-day period, if the Seller
or such Originator, as applicable, shall have commenced to cure such breach
within such 90-day period, the Seller or such Originator, as applicable, shall
be permitted to proceed thereafter diligently and expeditiously to cure the
breach within an additional 90-day period.
(c) Subject to the following sentence, it is understood and agreed that the
obligations of the Originator or the Seller to cure, repurchase or substitute
for any Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy available to the Trustee on behalf
of the Certificateholders and the Certificateholder against such party
respecting such omission, defect or breach. In addition to the cure, repurchase
and substitution obligations referenced in Section 2.07(c), in the event of a
breach of the Seller's representations and warranties contained in this
Agreement that occurs as a result of a High-Cost Home Loan in the Trust Fund,
the Seller shall indemnify the Trustee and hold it harmless against any
out-of-pocket losses, penalties, fines, forfeitures, reasonable and necessary
legal fees (including (without limitation) legal fees incurred in connection
with the enforcement of the Seller's indemnification obligation under this
Section 2.07) and related costs and expenses resulting from any claim, demand,
defense or assertion that is based on or grounded upon, or resulting from, such
breach.
(d) If the Seller is not a member of MERS at the time it repurchases a
Mortgage Loan and the Mortgage is registered on the MERS(R) System, the Trustee
shall cause the Seller, at the Seller's own expense and without any right of
reimbursement, to cause MERS to execute and deliver an assignment of the
Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and
to cause such Mortgage to be removed from registration on the MERS(R) System in
accordance with the MERS rules and regulations.
56
SECTION 2.08 Repurchase Obligation.
The Originators of certain Mortgage Loans are obligated to repurchase such
Mortgage Loan if the related Mortgagor fails to make its Scheduled Monthly
Payment thereon within 30 days of the Due Date therefor, for the months of
September or October, or in certain cases, November or December. The Depositor
shall advise the Trustee and the Master Servicer of any Mortgage Loan that is to
be repurchased because of such an early payment default, and the Trustee shall
enforce the Originator's obligation to repurchase such Mortgage Loan. If the
purchase price for the Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement is greater than the Repurchase Price, the difference shall be paid to
the Seller. The Repurchase Price for any Mortgage Loan repurchased pursuant to
this Agreement shall be deposited into the Distribution Account.
SECTION 2.09 Repurchase of Mortgage Loans.
(a) The purchase price for any Mortgage Loan repurchased by the Seller
pursuant to this Agreement shall be the Repurchase Price for such Mortgage Loan,
provided that in the event that the Originator is obligated to repurchase a
Mortgage Loan, and the purchase price therefor pursuant to the Mortgage Loan
Purchase Agreement is greater than the Repurchase Price, the difference shall be
paid to the Seller. The Repurchase Price for any Mortgage Loan repurchased
pursuant to this Agreement shall be deposited into the Distribution Account.
(b) The Custodian, upon receipt of a Request for Release from the Seller
(which Request for Release shall include a certification by the Seller of the
repurchase and the remittance of the Repurchase Price to the Securities
Administrator for deposit into the Distribution Account), shall release to the
Seller the related Mortgage File. The Trustee or its authorized designee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as the Seller may furnish to the
Trustee or the Custodian and as shall be necessary to vest in such party any
Mortgage Loan released pursuant hereto. None of the Trustee, the Securities
Administrator, the Master Servicer or the Custodian shall have any
responsibility for determining the sufficiency of such assignment for its
intended purpose, and upon such release, the Trustee and the Custodian shall
have no further responsibility with regard to such Mortgage File.
SECTION 2.10 Substitution of Mortgage Loans.
(a) In lieu of repurchasing any such Mortgage Loan as provided above, the
Seller (as such, the "Substituting Party") may cause such Mortgage Loan to be
removed from the Trust Fund (in which case it shall become a "Deleted Mortgage
Loan") and substitute one or more Qualified Substitute Mortgage Loans in the
manner and subject to the limitations of this Section 2.10. Any substitution of
Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to
this Section 2.10 must be effected prior to the last Business Day that is within
two years after the Closing Date. As to any Deleted Mortgage Loan for which the
Substituting Party substitutes a Qualified Substitute Mortgage Loan or Loans,
such substitution shall be effected by delivering to the Custodian, for such
Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the assignment to the Substituting Party, and such other documents and
agreements, with all necessary endorsements thereon, together with an
57
Officers' Certificate stating that each such Qualified Substitute Mortgage Loan
satisfies the definition thereof and specifying the Substitution Adjustment
Amount (as described below), if any, in connection with such substitution. The
Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan
and, within 45 days thereafter, shall review such Mortgage Files and deliver to
the Substituting Party, the Trustee and the Depositor, with respect to such
Qualified Substitute Mortgage Loans, a certification substantially in the form
of a revised Initial Certification, with any exceptions noted thereon. Within 90
days of the date of substitution, the Custodian shall deliver to the
Substituting Party, the Trustee and the Depositor a certification substantially
in the form of a revised Final Certification, with respect to such Qualified
Substitute Mortgage Loans, with any exceptions noted thereon. Scheduled Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall not be included as part of the Trust Fund and shall be
retained by the Substituting Party. For the month of substitution, payments to
the Certificateholders shall reflect the collections and recoveries in respect
of such Deleted Mortgage Loan in the related Due Period and the Substituting
Party shall thereafter be entitled to retain all amounts subsequently received
in respect of such Deleted Mortgage Loan. Upon such substitution, such Qualified
Substitute Mortgage Loan shall constitute part of the Trust Fund and shall be
subject in all respects to the terms of this Agreement as of the date of
substitution.
(b) The Depositor shall amend the related Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan and the substitution of the Qualified
Substitute Mortgage Loan or Loans and the Seller shall deliver the amended
Mortgage Loan Schedule to the Trustee, the Master Servicer, the Securities
Administrator, the Custodian and the Servicer. Upon such substitution, the
Qualified Substitute Mortgage Loan shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Qualified Substitute Mortgage Loan, as of the date of
substitution, the representations and warranties made pursuant to Section 2.07
with respect to such Mortgage Loan.
(c) For any month in which any Substituting Party substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Seller shall deposit the excess (each, a "Substitution Adjustment Amount"), if
any, by which the aggregate Stated Principal Balances of all such Deleted
Mortgage Loans exceeds the aggregate Stated Principal Balances of the Qualified
Substitute Mortgage Loans replacing such Deleted Mortgage Loans, together with
(i) amounts specified in clause (c) of the definition of Repurchase Price and
(ii) one month's interest on such excess amount at the applicable Net Mortgage
Rate. On the date of such substitution, the Seller shall deliver or cause to be
delivered to the Securities Administrator for deposit in the Distribution
Account an amount equal to the related Substitution Adjustment Amount, if any,
and the Custodian, upon receipt of the related Qualified Substitute Mortgage
Loan or Loans and a Request for Release from the Seller, which includes a
written certification of the Seller of delivery of such amount to the Securities
Administrator, shall release to the Substituting Party the related Mortgage File
or Files. The Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as the
Substituting Party shall deliver to the Trustee with respect to any Deleted
Mortgage Loan to be released pursuant hereto.
(d) In addition, before any such substitution can take effect, the
Substituting Party shall obtain at its own expense and deliver to the Trustee an
Opinion of Counsel to the effect that
58
such substitution (either specifically or as a class of transactions) shall not
cause (a) any federal tax to be imposed on the Trust Fund, including without
limitation, any federal tax imposed on "prohibited transactions" under Section
860F(a)(l) of the Code or on "contributions after the Startup Date" under
Section 860G(d)(l) of the Code, or (b) any REMIC created hereunder to fail to
qualify as a REMIC at any time that any Certificate is outstanding. If such
Opinion of Counsel can not be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be given.
SECTION 2.11 Granting Clause.
(a) It is intended that the conveyance of the Mortgage Loans by the Seller
to the Depositor and by the Depositor to the Trustee for the benefit of the
Certificateholders, as provided for in Sections 2.01 and 2.02, be construed as a
sale of the Mortgage Loans and other assets in the Trust Fund by the Seller to
the Depositor and by the Depositor to the Trustee for the benefit of the
Certificateholders. Further, it is not intended that any such conveyances be
deemed a pledge of the Mortgage Loans by the Seller to the Depositor to secure a
debt or other obligation of the Seller, or a pledge of the Mortgage Loans by the
Depositor to the Trustee for the benefit of the Certificateholders to secure a
debt or other obligation of the Depositor. However, in the event that the
Mortgage Loans are held to be property of the Seller or the Depositor or if for
any reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans and other assets in the Trust Fund, then it is intended that:
(i) this Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the UCC;
(ii) the conveyances provided for in Sections 2.01 and 2.02 shall be
deemed a grant by the Seller to the Depositor, and by the Depositor to the
Trustee for the benefit of the Certificateholders, as the case may be, of (1) a
security interest in all of the Seller's right and Depositor's right, as
applicable, (including the power to convey title thereto), title and interest,
whether now owned or hereafter acquired, in and to (A) the Mortgage Loans,
including the Mortgage Notes, the Mortgages, any related insurance policies and
all other documents in the related Mortgage Files, (B) all amounts payable
pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any
and all general intangibles consisting of, arising from or relating to any of
the foregoing, and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all Liquidation Proceeds, all Insurance Proceeds and all
amounts from time to time held or invested in the Distribution Account and the
Custodial Account, whether in the form of cash, instruments, securities or other
property and (2) an assignment by the Seller to the Depositor and by the
Depositor to the Trustee for the benefit of the Certificateholders of any
security interest in any and all of the Seller's and Depositor's right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to the property described in the foregoing
clauses (1)(A) through (C);
(iii) the possession by the Trustee, the Custodian or any other agent
of the Trustee of Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party," or possession by a purchaser or a person
designated by such secured party, for purposes of
59
perfecting the security interest pursuant to the UCC and any other UCC
(including, without limitation, Sections 9-313, 8-313 or 8-321 thereof); and
(iv) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Issuing
Entity for the purpose of perfecting such security interest under applicable
law.
(b) The Seller and the Depositor shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans
and the other property of the Trust Fund, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. Without
limiting the generality of the foregoing, the Seller and the Depositor shall
prepare and file any UCC financing statements that are necessary to perfect the
Depositor's and the Trustee's security interest in or lien on the Mortgage
Loans, as evidenced by an Officer's Certificate of the Seller and the Depositor,
and furnish a copy of each such filed financing statement to the Trustee. The
Seller and the Depositor shall prepare and file, at the expense of the Trust
Fund, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee's security
interest in or lien on the Mortgage Loans for the benefit of the
Certificateholders, including without limitation (i) continuation statements,
and (ii) to the extent that a Responsible Officer of the Depositor has received
written notice of such change or transfer, such other statements as may be
occasioned by (A) any change of name of the Seller, the Depositor or the
Trustee, (B) any change of location of the domicile or the chief executive
office of the Seller or the Depositor, or (C) any transfer of any interest of
the Seller or the Depositor in any Mortgage Loan.
(c) Neither the Seller nor the Depositor shall organize under the law of
any jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice of
such action to the related Servicer and the Trustee. Before effecting such
change, each of the Seller or the Depositor proposing to change its jurisdiction
of organization shall prepare and file in the appropriate filing office any
financing statements or other statements necessary to continue the perfection of
the interests of its transferees, including the Trustee for the benefit of the
Certificateholders, in the Mortgage Loans.
(d) Neither the Seller nor the Depositor shall take any action inconsistent
with the sale by the Seller or the Depositor of its right, title and interest in
and to the Mortgage Loans or Trust Fund and shall indicate or shall cause to be
indicated in its records and records held on its behalf that ownership of each
Mortgage Loan and the other property of the Trust Fund is held by the Trustee
for the benefit of the Certificateholders. In addition, the Seller and the
Depositor shall respond to any inquiries from third parties with respect to
ownership of a Mortgage Loan or any other property of the Trust Fund by stating
that it is not the owner of such Mortgage Loan and that ownership of such
Mortgage Loan or other property of the Trust Fund is held by the Trustee for the
benefit of the Certificateholders.
60
SECTION 2.12 Purpose.
(a) The permitted activities of the Issuing Entity shall be limited to the
following:
(i) to issue Certificates pursuant to the Agreement and to sell the
Certificates;
(ii) to pay the organizational, start-up and transactional expenses of
the Issuing Entity;
(iii) to assign, grant, transfer, pledge, sell and convey the Mortgage
Loans pursuant to this Agreement;
(iv) to enter into and perform its obligations under this Agreement;
(v) to engage in those activities, including entering into agreements
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(vi) subject to compliance with this Agreement, to engage in such
other activities as may be required in connection with the conservation of the
Trust Fund and the making of distributions to the Certificateholders.
(b) The Issuing Entity shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement. No amendment pursuant to Section 13.01 shall change the
permitted activities of the Issuing Entity.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of the Seller.
The Seller hereby represents and warrants to the other parties hereto as of
the Closing Date that:
(a) The Seller has been duly organized and is validly existing as a
Maryland business trust in good standing under the laws of Maryland, with full
power and authority to own its assets and conduct its business as presently
being conducted.
(b) The Seller has the full entity power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as
61
such enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the sale of the
Mortgage Loans by the Seller, the transactions contemplated hereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with or result in a breach of any of the terms, the certificate of
incorporation, bylaws or any legal restriction or any agreement or instrument to
which the Seller is now a party or by which it is bound, or constitute a default
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Seller or its property is subject, or impair the ability of
the Issuing Entity to realize on the Mortgage Loans, or impair the value of the
Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement or
the sale of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Seller which, either individually or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or
contemplated herein, or which would be likely to impair materially the ability
of the Seller to perform under the terms of this Agreement.
(g) The transfer, assignment and conveyance of the Mortgage Loans by the
Seller pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
(h) The Seller is solvent and the sale of the Mortgage Loans will not cause
the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken
to hinder, delay or defraud any of the Seller's creditors.
(i) The consideration received by the Seller upon the sale of the Mortgage
Loans under this Agreement constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans.
(j) The Seller has determined that the disposition of the Mortgage Loans
from Seller to Depositor pursuant to this Agreement will be afforded sale
treatment for accounting purposes, all on a non-consolidated basis.
(k) The Seller has not transferred the Mortgage Loans to the Depositor with
any intent to hinder, delay or defraud any of its creditors.
62
(l) The Seller has not dealt with any broker, investment banker, agent or
other Person that may be entitled to any commission or compensation in the
connection with the sale of the Mortgage Loans.
(m) Immediately prior to the transfer by the Seller to the Depositor of
each Mortgage Loan, the Seller had good and equitable title to each Mortgage
Loan, subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of any
nature. On and after the transfer by the Seller to the Depositor of each
Mortgage Loan, the Depositor will have good and equitable title to each Mortgage
Loan, subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of any
nature.
SECTION 3.02 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the other parties hereto as
of the Closing Date that:
(a) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of Delaware, with full power and
authority to own its assets and conduct its business as presently being
conducted.
(b) The Depositor has the full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Depositor and the
consummation of the transactions contemplated hereby have been duly and validly
authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the sale of the
Mortgage Loans by the Depositor, the transactions contemplated hereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with or result in a breach of any of the terms, certificate of
incorporation, bylaws or any legal restriction or any agreement or instrument to
which the Depositor is now a party or by which it is bound, or constitute a
default or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Depositor or its property is subject, or impair the
ability of the Issuing Entity to realize on the Mortgage Loans, or impair the
value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of or compliance by the Depositor with this
Agreement or the sale of the Mortgage Loans is evidenced by the consummation of
the transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date.
63
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Depositor which, either individually or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Depositor, or in
any material impairment of the right or ability of the Depositor to carry on its
business substantially as now conducted, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or to be
contemplated herein, or which would be likely to impair materially the ability
of the Depositor to perform under the terms of this Agreement.
(g) The transfer, assignment and conveyance of the Mortgage Loans by the
Depositor pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
(h) The Depositor is solvent and the sale of the Mortgage Loans will not
cause the Depositor to become insolvent. The sale of the Mortgage Loans is not
undertaken to hinder, delay or defraud any of the Depositor's creditors.
(i) The consideration received by the Depositor upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans.
(j) The Depositor has not transferred the Mortgage Loans to the Trust Fund
with any intent to hinder, delay or defraud any of its creditors.
(k) The Depositor has not dealt with any broker, investment banker, agent
or other Person that may be entitled to any commission or compensation in the
connection with the sale of the Mortgage Loans.
(l) Immediately prior to the transfer by the Depositor to the Trust Fund of
each Mortgage Loan, the Depositor had good and equitable title to each Mortgage
Loan (insofar as such title was conveyed to it by the Seller), subject to no
prior lien, claim, participation interest, mortgage, security interest, pledge,
charge or other encumbrance or other interest of any nature. On and after the
transfer by the Depositor to the Trust Fund of each Mortgage Loan, the Issuing
Entity will have good and equitable title to each Mortgage Loan (insofar as such
title was conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or other
encumbrance or other interest of any nature.
SECTION 3.03 Representations and Warranties of the Master Servicer and
Securities Administrator.
▇▇▇▇▇ Fargo Bank, N.A. hereby represents and warrants to the other parties
hereto as of the Closing Date that:
(a) It is a national banking association, duly organized and validly
existing in good standing under the laws of the United States of America, with
full power and authority to own its assets and conduct its business as presently
being conducted.
64
(b) It has the full corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder, and the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Master Servicer or
the Securities Administrator and the consummation of the transactions
contemplated hereby have been duly and validly authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Master Servicer and Securities Administrator, enforceable against each in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement will conflict with or result in a breach of any of
the terms, articles of incorporation or by-laws or any legal restriction or any
agreement or instrument to which the Master Servicer or the Securities
Administrator are now a party or by which it is bound, or constitute a default
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Master Servicer or the Securities Administrator or their
respective properties are subject, or impair the ability of the Issuing Entity
to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer and the Securities Administrator of or
compliance by the Master Servicer and Securities Administrator with this
Agreement as evidenced by the consummation of the transactions contemplated by
this Agreement, or if required, such consent, approval, authorization or order
has been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Master Servicer or the Securities Administrator
which, either individually or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Master Servicer or the Securities Administrator, or in any
material impairment of the right or ability of the Master Servicer or the
Securities Administrator to carry on its business substantially as now
conducted, or which would draw into question the validity of this Agreement or
the Mortgage Loans or of any action taken or to be contemplated herein, or which
would be likely to impair materially the ability of the Master Servicer or the
Securities Administrator to perform under the terms of this Agreement.
(g) At such time the Master Servicer is the successor servicer, the Master
Servicer or an Affiliate of the Master Servicer is a HUD-approved mortgagee
pursuant to Section 203 of the National Housing Act and is in good standing to
service Mortgage Loans for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, and no event has
occurred, including but not limited to a change in insurance coverage, which
would make it or any of its Affiliates unable to comply with ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac eligibility requirements or which would require notification to
either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
65
(h) The consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Master Servicer and Securities
Administrator.
(i) It has not been terminated as master servicer or securities
administrator in a residential mortgage loan securitization, either due to a
master servicing default or other inability to perform the required services.
(j) No material changes to the Master Servicer's policies or procedures
with respect to the master servicing function for mortgage loans of a type
similar to the Mortgage Loans have occurred during the three-year period
immediately preceding the date hereof.
(k) There are no aspects of the Master Servicer's financial condition that
could have a material adverse effect on the performance by it of its master
servicing obligations under this Agreement.
(l) There are no legal or governmental proceedings pending (or known to be
contemplated) against the Master Servicer that are material to the
Certificateholders.
(m) There are no affiliations, relationships or transactions relating the
Master Servicer with respect to this transaction and any party thereto
identified by the Depositor of a type described in Item 1119 of Regulation AB.
ARTICLE IV
REPORTS
SECTION 4.01 Annual Assessment of Compliance.
By March 15th of each year, commencing in March 2007, the Master Servicer
and the Securities Administrator, each at its own expense, shall furnish or
otherwise make available, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (A) a statement by such party of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Relevant Servicing Criteria
to assess compliance with the Relevant Servicing Criteria, (C) such party's
assessment of compliance with the Relevant Servicing Criteria as of and for the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
4.05(a)(ii), including, if there has been any material instance of noncompliance
with the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such party's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
No later than the end of each fiscal year for the Trust for which a 10-K is
required to be filed, the Master Servicer shall forward to the Securities
Administrator and the Depositor the name of each Servicing Function Participant
engaged by it and what Relevant Servicing Criteria will be addressed in the
report on assessment of compliance prepared by such Servicing Function
Participant (provided, however, that the Master Servicer need not provide such
information to the Securities Administrator so long as the Master Servicer and
the Securities Administrator are the same Person). When the Master Servicer and
the Securities Administrator (or any Servicing
66
Function Participant engaged by them) submit their assessments to the Securities
Administrator, such parties will also at such time include the assessment and
attestation pursuant to Section 4.03 of each Servicing Function Participant
engaged by it.
Promptly after receipt of each such report on assessment of compliance, (i)
the Depositor shall review each such report and, if applicable, consult with the
Master Servicer, the Securities Administrator, and any Servicing Function
Participant engaged by such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such party, and (ii)
the Securities Administrator shall confirm that the assessments, taken as a
whole, address all of the Servicing Criteria and taken individually address the
Relevant Servicing Criteria for each party as set forth on Exhibit 1122 and on
any similar exhibit set forth in each Servicing Agreement in respect of each
Servicer and notify the Depositor of any exceptions.
The Master Servicer shall include all annual reports on assessment of
compliance received by it from the Servicers with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section.
In the event the Master Servicer, the Securities Administrator, or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under, or resigns pursuant to, the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide a report on assessment of compliance pursuant to this Section
4.01, or to such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
SECTION 4.02 Annual Compliance Statement.
The Master Servicer and the Securities Administrator shall deliver or
otherwise make available (and each shall cause any Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator, and in the case of the Master Servicer, to the Trustee, on or
before March 15th of each year, commencing in March 2007, an Officer's
Certificate stating, as to the signer thereof, that (A) a review of such party's
activities during the preceding calendar year or portion thereof and of such
party's performance under this Agreement, or such other applicable agreement in
the case of a Servicing Function Participant, has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, such party has fulfilled all its obligations under this Agreement, or
such other applicable agreement in the case of a Servicing Function Participant,
in all material respects throughout such year or portion thereof, 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
thereof.
The Master Servicer shall include all annual statements of compliance
received by it from each Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section.
In the event the Master Servicer or the Securities Administrator, or any
Servicing Function Participant engaged by any such party is terminated or
resigns pursuant to the terms of this Agreement, or any applicable agreement in
the case of a Servicing Function Participant, as the
67
case may be, such party shall provide an Officer's Certificate pursuant to this
Section 4.02 or to such applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
SECTION 4.03 Attestation Report.
By March 15th of each year, commencing in March 2007, the Master Servicer
and the Securities Administrator, each at its own expense, shall cause, and each
such party shall cause any Servicing Function Participant engaged by it to
cause, each at its own expense, a registered public accounting firm (which may
also render other services to the Master Servicer, the Trustee, the Securities
Administrator, or such other Servicing Function Participants, as the case may
be) and that is a member of the American Institute of Certified Public
Accountants to furnish an attestation report to the Securities Administrator and
the Depositor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii) on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing an
opinion as to whether such party's compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party's assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
Promptly after receipt of each such assessment of compliance and
attestation report, the Securities Administrator shall confirm that each
assessment submitted pursuant to Section 4.01 is coupled with an attestation
meeting the requirements of this Section and notify the Depositor of any
exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
In the event the Master Servicer, the Securities Administrator, any
Servicer or any Servicing Function Participant engaged by any such party, is
terminated, assigns its rights and duties under, or resigns pursuant to the
terms of, this Agreement, or any applicable Custodial Agreement, Servicing
Agreement or sub-servicing agreement, as the case may be, such party shall cause
a registered public accounting firm to provide an attestation pursuant to this
Section 4.03, or such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
SECTION 4.04 Back-Up Certification.
Each Form 10-K shall include a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, required to be
included therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Master Servicer and
the Securities Administrator shall provide, and each such party shall cause any
Servicing Function Participant engaged by it to provide, to the Person who signs
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the
68
"Certifying Person"), by March 15th of each year in which the Trust is subject
to the reporting requirements of the Exchange Act and otherwise within a
reasonable period of time upon request, a certification (each, a "Back-Up
Certification"), in the form attached hereto as Exhibit SOX, upon which the
Certifying Person, the entity for which the Certifying Person acts as an
officer, and such entity's officers, directors and Affiliates (collectively with
the Certifying Person, "Certification Parties") can reasonably rely. The senior
officer of the Master Servicer in charge of the master servicing function shall
serve as the Certifying Person on behalf of the Trust. Such officer of the
Certifying Person can be contacted by e-mail at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at (▇▇▇) ▇▇▇-▇▇▇▇. In the
event any such party or any Servicing Function Participant engaged by such party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable sub-servicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section 4.04
with respect to the period of time it was subject to this Agreement or any
applicable sub-servicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing Agreement or Custodial
Agreement.
SECTION 4.05 Commission Reporting.
(a) The Securities Administrator shall, in accordance with industry
standards, prepare and file with the Commission via ▇▇▇▇▇, the following reports
in respect of the Issuing Entity as and to the extent required under the
Exchange Act, each of which reports shall be signed by the Master Servicer.
(i) Distribution Report on Form 10-D. Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Securities Administrator shall prepare and file on behalf of the Trust any Form
10-D required by the Exchange Act, in form and substance as required by the
Exchange Act. The Securities Administrator shall file each Form 10-D with a copy
of the related Monthly Statement attached thereto. Any disclosure in addition to
the Monthly Statement that is required to be included on Form 10-D ("Additional
Form 10-D Disclosure") shall be reported by the parties set forth on Exhibit I
to the Depositor and the Securities Administrator and directed and approved by
the Depositor pursuant to the following paragraph, and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-D Disclosure, except as set forth in
the next paragraph.
As set forth on Exhibit I hereto, within five calendar days after the
related Distribution Date, (i) the parties to this transaction shall be required
to provide to the Securities Administrator and to the Depositor, to the extent
known by a responsible officer thereof, in ▇▇▇▇▇-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-D Disclosure, if
applicable, together with an Additional Disclosure Notification in the form of
Exhibit L hereto (an "Additional Disclosure Notification") and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-D
69
Disclosure on Form 10-D. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
After preparing the Form 10-D, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-D to the Depositor
(provided that such Form 10-D includes any Additional Form 10-D Disclosure).
Within two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Distribution Date, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-D. In the absence of receipt of any
written changes or approval, or if the Depositor does not request a copy of a
Form 10-D, the Securities Administrator shall be entitled to assume that such
Form 10-D is in final form and the Securities Administrator may proceed with the
execution and filing of the Form 10-D. A duly authorized representative of the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 4.05(b). Promptly
(but no later than one Business Day) after filing with the Commission, the
Securities Administrator will make available on its internet website a final
executed copy of each Form 10-D filed by the Securities Administrator. Each
party to this Agreement acknowledges that the performance by the Master Servicer
and the Securities Administrator of its duties under this Section 4.05(a)(i)
related to the timely preparation, execution and filing of Form 10-D is
contingent upon such parties strictly observing all applicable deadlines in the
performance of their duties under this Section 4.05(a)(i). Neither the Master
Servicer nor the Securities Administrator shall have any liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file such Form 10-D, where such failure results
from the Securities Administrator's inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-D, not resulting from its
own negligence, bad faith or willful misconduct.
Each of Form 10-D and Form 10-K requires the registrant to indicate (by
checking "yes" or "no") that it "(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days." The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that it
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Securities Administrator in writing, no later than the fifth
calendar day after the related Distribution Date with respect to the filing of a
report on Form 10-D and no later than March 15th with respect to the filing of a
report on Form 10-K, if the answer to the questions should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(ii) Annual Report on Form 10-K. On or prior to the 90th day after the
end of each fiscal year of the Trust or such earlier date as may be required by
the Exchange Act (the "10-K Filing Deadline") (it being understood that the
fiscal year for the Trust ends on December 31st of each year), commencing in
March 2007, the Securities Administrator shall prepare and file on behalf of the
Trust a Form 10-K, in form and substance as required by the Exchange Act.
70
Each such Form 10-K shall include the following items, in each case to the
extent they have been delivered to the Securities Administrator within the
applicable time frames set forth in this Agreement, the related Servicing
Agreements and Custodial Agreements, (i) an annual compliance statement for each
Servicer, the Master Servicer, the Securities Administrator and any Servicing
Function Participant engaged by such parties (together with each Custodian,
each, a "Reporting Servicer") as described under Section 4.02 and in such other
agreements, (ii)(A) the annual reports on assessment of compliance with
servicing criteria for each Reporting Servicer, as described under Section 4.01
and in such other agreements, and (B) if each Reporting Servicer's report on
assessment of compliance with servicing criteria identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if each Reporting Servicer's report on assessment of
compliance with servicing criteria is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, (iii)(A) the registered public accounting firm
attestation report for each Reporting Servicer, as described under Section 4.03
or in such other agreement, and (B) if any registered public accounting firm
attestation report identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, and (iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described in
Section 4.04 (provided, however, that the Securities Administrator, at its
discretion, may omit from the Form 10-K any annual compliance statement,
assessment of compliance or attestation report that is not required to be filed
with such Form 10-K pursuant to Regulation AB). Any disclosure or information in
addition to (i) through (iv) above that is required to be included on Form 10-K
("Additional Form 10-K Disclosure") shall be reported by the parties set forth
on Exhibit J to the Depositor and the Securities Administrator and directed and
approved by the Depositor pursuant to the following paragraph, and the
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure, except as
set forth in the next paragraph.
As set forth on Exhibit J hereto, no later than March 15th of each year
that the Trust is subject to the Exchange Act reporting requirements, commencing
in 2007, (i) the parties to this transaction shall be required to provide to the
Securities Administrator and to the Depositor, to the extent known by a
responsible officer thereof, in ▇▇▇▇▇-compatible form, or in such other form as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 10-K Disclosure, if applicable, together
with an Additional Disclosure Notification and (ii) the Depositor will approve,
as to form and substance, or disapprove, as the case may be, the inclusion of
the Additional Form 10-K Disclosure on Form 10-K. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-K to the Depositor. Within
three Business Days after receipt of such copy, but no later than March 25th,
the Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K. In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Securities Administrator shall be
entitled
71
to assume that such Form 10-K is in final form and the Securities Administrator
may proceed with the execution and filing of the Form 10-K. A senior officer of
the Master Servicer in charge of the master servicing function shall sign the
Form 10-K. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K needs to be amended, the Securities Administrator will follow the
procedures set forth in Section 4.05(b). Promptly (but no later than one
Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-K filed by the Securities Administrator. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 4.05(a)(ii) related to the timely
preparation, execution and filing of Form 10-K is contingent upon such parties
(and any Servicing Function Participant) strictly observing all applicable
deadlines in the performance of their duties under this Section 4.05(a)(ii),
Section 4.04, Section 4.02, Section 4.01 and Section 4.03. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 10-K, where such failure
results from the Securities Administrator's inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 10-K, not resulting from its
own negligence, bad faith or willful misconduct.
(iii) Current Reports on Form 8-K. Within four Business Days after the
occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor, the Securities
Administrator shall prepare and file on behalf of the Trust any Form 8-K, as
required by the Exchange Act, provided that the Depositor shall file the initial
Form 8-K in connection with the issuance of the Certificates. Any disclosure or
information related to a Reportable Event or that is otherwise required to be
included on Form 8-K other than the initial Form 8-K ("Form 8-K Disclosure
Information") shall be reported by the parties set forth on Exhibit K to the
Depositor and the Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph, and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the
next paragraph.
As set forth on Exhibit K hereto, for so long as the Trust is subject to
the Exchange Act reporting requirements, no later than the close of business
(New York City time) on the 2nd Business Day after the occurrence of a
Reportable Event (i) the parties to this transaction shall be required to
provide to the Securities Administrator and to the Depositor, to the extent
known by a responsible officer thereof, in ▇▇▇▇▇-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Form 8-K Disclosure Information, if
applicable, together with an Additional Disclosure Notification and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 8-K to the Depositor.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or
72
approval of such Form 8-K. In the absence of receipt of any written changes or
approval, or if the Depositor does not request a copy of a Form 8-K, the
Securities Administrator shall be entitled to assume that such Form 8-K is in
final form and the Securities Administrator may proceed with the execution and
filing of the Form 8-K. A duly authorized representative of the Master Servicer
shall sign each Form 8-K. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator will
follow the procedures set forth in Section 4.05(b). Promptly (but no later than
one Business Day) after filing with the Commission, the Securities Administrator
will, make available on its internet website a final executed copy of each Form
8-K. The parties to this Agreement acknowledge that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 4.05(a)(iii) related to the timely preparation, execution and filing of
Form 8-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 4.05(a)(iii).
Neither the Master Servicer nor the Securities Administrator shall have any
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, execute and/or timely file such Form 8-K, where
such failure results from the Securities Administrator's inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
(iv) Form 15. On or prior to January 30th of the first year in which
the Securities Administrator is able to do so under applicable law, the
Securities Administrator shall prepare and file a Form 15 Suspension
Notification relating to the automatic suspension of reporting in respect of the
Trust under the Exchange Act.
(b) In the event that the Securities Administrator is unable to timely file
with the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify electronically the Depositor. In the case of
Form 10-D and 10-K, the parties to this Agreement will cooperate to prepare and
file a Form 12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule
12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed Form
8-K, 10-D or 10-K needs to be amended in connection with any Additional Form
10-D Disclosure (other than for the purpose of restating any Monthly Report),
Additional Form 10-K Disclosure or Form 8-K Disclosure Information, the
Securities Administrator will electronically notify the Depositor and such other
parties to the transaction as are affected by such amendment, and such parties
will cooperate to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15,
Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be signed by a duly
authorized representative, or senior officer in charge of master servicing, as
applicable, of the Master Servicer. The parties to this Agreement acknowledge
that the performance by the Master Servicer and the Securities Administrator of
its duties under this Section 4.05(b) related to the timely preparation,
execution and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
10-D or 10-K is contingent upon each such party performing its duties under this
Section. Neither the Master Servicer nor the Securities Administrator shall have
any liability for any loss,
73
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from the
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
SECTION 4.06 Distribution Date Report.
(a) On each Distribution Date, the Securities Administrator shall make
available to the other parties hereto a report containing information with
respect to such Distribution Date (each, a "Distribution Date Report"),
including the following items (on the basis of information provided with respect
to the Mortgage Loans by the Servicers):
(i) interest received on the Mortgage Loans;
(ii) the Accrued Certificate Interest and the Adjusted Accrued
Certificate Interest for each Class of Certificates;
(iii) the Principal Remittance Amount, including Liquidation Proceeds
and Insurance Proceeds, stating separately the amount attributable to
Scheduled Monthly Payments of principal and unscheduled payments in the
nature of principal, Principal Distribution Amount and Basic Principal
Distribution Amount;
(iv) the amount of principal and interest distributed on each Class of
Certificates;
(v) the Certificate Principal Balance of each Class of Certificates,
to the extent applicable, as of such Distribution Date after giving effect
to payments allocated to principal reported under subclause (iii) above and
the Notional Amount of the Class C Certificates as of such Distribution
Date;
(vi) the Pass-Through Rate, if applicable, for each Class of
Certificates for such Distribution Date;
(vii) for each Class of Certificates, amounts distributed on such
Distribution Date in respect of the Net WAC Cap Carryover Amounts and
Negative Amortization Carryover Amounts for such Class, the Net WAC Cap
Carryover Amounts and Negative Amortization Carryover Amounts for such
Class remaining unpaid after giving effect to distributions thereof on such
Distribution Date and the amounts of all Net WAC Carryover Amounts covered
by withdrawals from the Reserve Account on such Distribution;
(viii) the amount of any Realized Losses incurred with respect to the
Mortgage Loans (x) in the applicable Prepayment Period and (y) in the
aggregate since the Cut-off Date;
74
(ix) the amount of Realized Losses allocated to each Class of
Certificates on such Distribution Date and the aggregate amount of Realized
Losses allocated to each Class of Certificates since the Closing Date;
(x) the amount of the Servicing Fees and Master Servicing Fees paid
during the Due Period to which such Distribution Date relates;
(xi) the Substitution Adjustment Amounts paid during the related
Prepayment Period;
(xii) the Non-Mortgagor Prepayment Premium Payment Amounts paid during
the related Prepayment Period;
(xiii) the Additional Negative Amortization Amount, the Additional
Negative Amortization Amount Carryover Amount, the Adjusted Accrued
Certificate Interest, the Adjusted Net WAC Rate, the Cumulative Realized
Loss Percentage, the Class C Distributable Amount, the aggregate Deferred
Interest, the Delinquency Rate, the Excess Cash Flow, the Interest
Distribution Amount, the Interest Remittance Amount, the
Overcollateralization Amount, the Overcollateralization Deficiency Amount
(if any), the Rolling Three Month Delinquency Rate, the Senior Principal
Distribution Amount and the Target Overcollateralization Amount, in each
case for such Distribution Date, the related Due Period or the related
Prepayment Period, as applicable;
(xiv) the number and aggregate Stated Principal Balance of the
Mortgage Loans, as reported to the Master Servicer and the Securities
Administrator by the Servicers:
(A) remaining outstanding,
(B) that are Delinquent 30 to 59 days as of the last of the
related Due Period,
(C) that are Delinquent 60 to 89 days as of the last of the
related Due Period,
(D) that are Delinquent 90 or more days as of the last of the
related Due Period,
(E) as to which foreclosure proceedings have been commenced
during the related Prepayment Period and since the Closing Date,
(F) as to which the related Mortgagor has filed for bankruptcy
after the Closing Date, and
(G) that are REO Properties as of the last of the related
Prepayment Period;
75
(xv) the aggregate Stated Principal Balance of any Mortgage Loans with
respect to which the related Mortgaged Property became an REO Property as
of the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs;
(xvi) with respect to substitution of Mortgage Loans in the preceding
calendar month, the Stated Principal Balance of each Deleted Mortgage Loan
and of each Qualified Substitute Mortgage Loan;
(xvii) the aggregate amount of any Monthly Advances made by or on
behalf of each Servicer (or the Master Servicer) solely to the extent
reported to the Securities Administrator by the Master Servicer; and
(xviii) LIBOR with respect to such Distribution Date.
(b) The Securities Administrator will make such report and additional loan
level information (and, at its option, any additional files containing the same
information in an alternative format) available each month via the Securities
Administrator's website. The Securities Administrator's website can be accessed
at https:/▇▇▇.▇▇▇▇▇▇▇.▇▇▇. Assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at ▇▇▇-▇▇▇-▇▇▇▇.
Such parties that are unable to use the website are entitled to have a paper
copy mailed to them via first class mail by notifying the Securities
Administrator at the address set forth herein, and indicating such. The
Securities Administrator shall have the right to change the way such statements
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes.
(c) The foregoing information and reports shall be prepared and determined
by the Securities Administrator based solely on Mortgage Loan data provided to
the Master Servicer and the Securities Administrator by the Servicers pursuant
to the applicable Servicing Agreement. In preparing or furnishing the foregoing
information, the Securities Administrator shall be entitled to rely conclusively
on the accuracy of the information or data regarding the Mortgage Loans and the
related REO Property that have been provided to the Master Servicer and the
Securities Administrator by the Servicer, and neither the Securities
Administrator nor the Master Servicer shall be obligated to verify, recompute,
reconcile or recalculate any such information or data.
(d) Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall furnish upon request to each Person who at
any time during the calendar year was a Certificateholder, the information set
forth in clause (a)(iv) of this Section 4.06 aggregated for such calendar year
or applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Securities Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee or the Securities Administrator pursuant to any
requirements of the Code as from time to time in effect.
76
SECTION 4.07 [Reserved].
SECTION 4.08 Additional Information.
Each of the parties agrees to provide to the Securities Administrator such
additional information related to such party as the Securities Administrator may
reasonably request, including evidence of the authorization of the person
signing any certificate or statement, financial information and reports, and
such other information related to such party or its performance hereunder.
SECTION 4.09 Intention of the Parties and Interpretation.
Each of the parties acknowledges and agrees that the purpose of Article IV
is to facilitate compliance by ▇▇▇▇▇ Fargo and the Depositor with the provisions
of Regulation AB. 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 ▇▇▇▇▇ Fargo or the Depositor for delivery of additional or different
information as ▇▇▇▇▇ Fargo 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
SECTION 4.10 Indemnification.
Each of the Depositor, Master Servicer, Securities Administrator and any
Servicing Function Participant engaged by such party, respectively, shall
indemnify and hold harmless the Master Servicer, the Securities Administrator
and the Depositor, respectively, and each of its directors, officers, employees,
agents, and affiliates from and against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such party of any if its obligations under hereunder, including
particularly its obligations to provide any Assessment of Compliance,
Attestation Report, Compliance Statement or any information, data or materials
required to be included in any 1934 Act report, (b) any material misstatement or
omission in any information, data or materials provided by such party (or, in
the case of the Securities Administrator or Master Servicer, any material
misstatement or material omission in (i) any Compliance Statement, Assessment of
Compliance or Attestation Report delivered by it, or by any Servicing Function
Participant engaged by it, pursuant to this Agreement, or (ii) any Additional
Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure
concerning the Master Servicer or the Securities Administrator), or (c) the
negligence, bad faith or willful misconduct of such indemnifying party in
connection with its performance hereunder. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Master Servicer, the
Securities Administrator or the Depositor, as the case may be, then each such
party agrees that it shall contribute to the amount paid or payable by the
Master Servicer,
77
the Securities Administrator or the Depositor, as applicable, as a result of any
claims, losses, damages or liabilities incurred by such party in such proportion
as is appropriate to reflect the relative fault of the indemnified party on the
one hand and the indemnifying party on the other. This indemnification shall
survive the termination of this Agreement or the termination of any party to
this Agreement.
ARTICLE V
MASTER SERVICER
SECTION 5.01 Duties of the Master Servicer.
(a) The Master Servicer shall master service the Mortgage Loans in
accordance with the Accepted Master Servicing Practices and the provisions of
this Agreement. The Master Servicer shall monitor the performance of the
obligations of each Servicer under its Servicing Agreement (provided, however,
that the Master Servicer shall have no duty to monitor compliance by a Servicer
of its obligation to remit Non-Mortgagor Prepayment Premium Payment Amounts or
Prepayment Premiums owed to the Issuing Entity).
(b) The Master Servicer shall not be required to cause any Servicer to take
any action or refrain from taking any action if this Agreement or the related
Servicing Agreement does not require such Servicer to take such action or
refrain from taking such action. The Master Servicer shall have no liability for
the acts or omissions of any Servicer in the performance by such Servicer of its
obligations under the related Servicing Agreement.
(c) If a party does not act as both the Master Servicer and the Securities
Administrator, not later than the Business Day prior to each Distribution Date,
the Master Servicer shall forward to the Securities Administrator a statement
setting forth the status of any account or accounts, including any collection
accounts, maintained by the Master Servicer as of the close of business on the
Business Day prior to the related Distribution Date, indicating that all
remittances or payments required by this Agreement to be made by the Master
Servicer have been made (or if any required remittance or payment has not been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from any account maintained by the Master Servicer.
(d) The Master Servicer shall, in accordance with the applicable Servicing
Agreement and Section 5.08, in the event a Responsible Officer of the Master
Servicer has actual knowledge that that the related Servicer has failed to
perform its obligations in accordance therewith, terminate the rights and
obligations of such Servicer thereunder and assume the obligation of such
Servicer or appoint a successor servicer in accordance with the provisions of
Section 5.08. The Master Servicer shall pay the costs of such enforcement at its
own expense, and shall be reimbursed for the costs of such enforcement initially
(i) from a specific recovery of costs, expenses or attorneys' fees against such
servicer, and then, (ii) to the extent that such amounts are insufficient to
reimburse the Master Servicer for the costs of such enforcement, from the
Distribution Account.
78
(e) If any Servicer fails to remit a Monthly Advance, the Master Servicer,
in its capacity as successor servicer, shall itself make such Monthly Advance.
If the Master Servicer determines that a Monthly Advance is required, it shall,
on the Business Day immediately prior to the related Distribution Date, deposit
in the Distribution Account immediately available funds in an amount equal to
such Monthly Advance. The Master Servicer shall be entitled to be reimbursed
from the Distribution Account in accordance with Section 8.01 for all Monthly
Advances made by it from late collections related to such Mortgage Loan or from
other funds as provided in Section 8.01. Notwithstanding anything to the
contrary herein, in the event the Master Servicer determines in its reasonable
judgment that a Monthly Advance is a Non-recoverable Advance, the Master
Servicer shall be under no obligation to make such Monthly Advance. In the event
that the Master Servicer determines that any such Monthly Advances are
Non-recoverable Advances, the Master Servicer shall provide the Trustee with a
certificate signed by a Responsible Officer of the Master Servicer evidencing
such determination and setting forth the basis for such determination.
(f) The Master Servicer undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement.
SECTION 5.02 Assignment or Delegation of Duties by the Master Servicer.
Except as expressly provided herein, the Master Servicer shall not assign
or transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Master Servicer hereunder, unless the Trustee and the Depositor shall have
consented to such action (such consent of the Trustee or the Depositor not to be
unreasonably withheld or delayed); provided, however, that the Master Servicer
shall have the right without the prior written consent of the Trustee or the
Depositor to delegate or assign to or subcontract with or authorize or appoint
an Affiliate of the Master Servicer to perform and carry out any duties,
covenants or obligations to be performed and carried out by the Master Servicer
hereunder. In no case, however, shall any such delegation, subcontracting or
assignment to an Affiliate of the Master Servicer relieve the Master Servicer of
any liability hereunder. Notice of such permitted assignment shall be given
promptly by the Master Servicer to the Depositor and the Trustee.
SECTION 5.03 Fidelity Bond and Errors and Omission Policy.
The Master Servicer, at its expense, shall maintain with responsible
companies, at its own expense, a blanket Fidelity Bond and an Errors and
Omissions Insurance Policy, with broad coverage on all officers, employees and
other Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
Errors and Omissions Insurance Policy shall be in such form and amount that is
consistent with coverage customarily maintained by master servicers of Mortgage
Loans similar to the Mortgage Loans. The Master Servicer shall provide the
Depositor and the Trustee, upon request, with a copy of the Fidelity Bond and
Errors and Omission Policy.
79
SECTION 5.04 Compensation to the Master Servicer.
(a) The Master Servicer will be entitled to the Master Servicer Fee on each
Distribution Date. All income and gain realized from any investment of funds in
the Distribution Account shall be for the benefit of the Master Servicer as
compensation. Notwithstanding the foregoing, if the Master Servicer is the
successor servicer, the Master Servicer shall deposit in the Distribution
Account, on or before the related Distribution Date, an amount equal to the
lesser of (a) its servicing compensation as successor Servicer with respect to
such Distribution Date and (b) the amount of any Compensating Interest Payment
required to be paid by it as successor Servicer with respect to such
Distribution Date pursuant to the related Servicing Agreement. The Master
Servicer shall be required to pay all expenses incurred by it in connection with
its activities hereunder and shall not be entitled to reimbursement therefor
except as provided in this Agreement.
(b) From the Master Servicing Fee, the Master Servicer shall pay the fees
of the Trustee and Custodian pursuant to an agreed fee schedule.
SECTION 5.05 Merger or Consolidation.
Any Person into which the Master Servicer may be merged or consolidated, or
any Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or resulting
Person to the Master Servicer shall be a Person that shall be qualified and
approved (or that have an Affiliate that is qualified and approved) to service
Mortgage Loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and shall have a net worth of not
less than $25,000,000.
SECTION 5.06 Examination Rights.
(a) The Depositor or their respective designees shall have the right to
examine and audit any and all of the related books, records, facilities or other
information of the Master Servicer, whether held by the Master Servicer or by
another on its behalf, solely and specifically relating to this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice;
provided, however, that such examination will not be permitted to the extent
such examination would be inconsistent with (i) the Master Servicer's current
reasonable procedures and policies in effect at such time, (ii) applicable law
(including any rules and regulations promulgated thereunder), including but not
limited to applicable copyright and trademark laws, (iii) any evidentiary
privileges that the Master Servicer or Securities Administrator may have with
respect to such materials, i.e., disclosure of such materials may cause the
Master Servicer to lose such privilege, and (iv) the confidentiality obligations
imposed upon the Master Servicer by any unaffiliated third-party relating to
such books of account and records. Each party shall pay its own travel expenses
associated with such examination.
80
(b) The Master Servicer shall make available for interview to the Depositor
or their employees, agents, representatives and attorneys, such officers and
employees that are responsible for and/or knowledgeable about the performance of
the Master Servicer's obligations under this Agreement. Any such interview shall
be upon reasonable advance notice and only as long as such interview does not
disrupt the operations of the Master Servicer.
SECTION 5.07 Resignation of Master Servicer.
(a) Except as otherwise provided in this Section 5.07, the Master Servicer
shall not resign from the obligations and duties hereby imposed on it except (i)
with the consent of the Depositor (which consent may not be unreasonably
withheld or delayed) or (ii) upon the determination that its duties hereunder
are no longer permissible under applicable law and such incapacity cannot be
cured by the Master Servicer. Any such determination permitting resignation
pursuant to clause (ii) above shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee and the Depositor. No such resignation
shall become effective until a successor master servicer shall have assumed the
Master Servicer's responsibilities and obligations under this Agreement. Notice
of such resignation shall be given promptly, but no less than 30 days prior to
the effectiveness of such resignation, by the Master Servicer to the Depositor
and the Trustee.
(b) Upon the resignation of the Master Servicer and the appointment of a
successor master servicer as described in the preceding paragraph, the
Securities Administrator, if the same party, also may resign upon notice to the
Depositor and the Trustee.
SECTION 5.08 Master Servicer to Act as Servicer; Appointment of Successor.
(a) If the Master Servicer becomes aware of a Servicer Event of Default,
the Master Servicer shall promptly notify the Depositor, the Seller and the
Trustee. In each and every such case, so long as a Servicer Event of Default
shall not have been remedied, in addition to whatever rights the Master Servicer
or the Trustee may have at law or equity to damages, including injunctive relief
and specific performance, the Master Servicer, by notice in writing to the
Servicer, may terminate all the rights and obligations of such Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof.
(b) To the extent provided in the related Servicing Agreement: If a
Servicer is terminated as provided herein, upon written request from the
Depositor or the Master Servicer, such Servicer shall, at its expense, prepare,
execute and deliver to the successor entity designated by the Master Servicer
any and all documents and other instruments, place in such successor's
possession all Mortgage Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at such Servicer's sole
expense. The applicable Servicer shall cooperate with the Master Servicer and
such successor in effecting the termination of the Servicer's responsibilities
and rights hereunder, including without limitation, the transfer to such
successor for administration by it of all cash amounts which shall at the time
be credited by the Servicer to the Custodial Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
81
(c) To the extent provided in the related Servicing Agreement: In
connection with the foregoing, the Servicer being terminated shall bear all
reasonable out-of-pocket costs of a servicing transfer, including but not
limited to those of the Master Servicer, the Securities Administrator, the
Trustee, legal fees and expenses, accounting and financial consulting fees and
expenses, and costs of amending the Agreement, if necessary. If such amounts are
not paid by (or required to be paid by) the terminated Servicer, they shall be
paid from amounts held in the Distribution Account pursuant to Section 5.08(h)
of this Agreement.
(d) On and after the time any Servicer resigns or is terminated by the
Master Servicer pursuant to this Section 5.08 or the terms of the applicable
Servicing Agreement, the Master Servicer shall appoint a successor servicer
pursuant to this Agreement, who shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on such Servicer by the terms and
provisions of this Agreement and applicable law.
(e) It is understood and acknowledged by the parties hereto that there will
be a period of transition (not to exceed 90 days) before the actual servicing
functions can be fully transferred to any successor servicer.
(f) Any successor to any Servicer appointed pursuant to this Agreement or
any Servicing Agreement shall be an institution that is a ▇▇▇▇▇▇ Mae-and ▇▇▇▇▇▇▇
Mac-approved servicer in good standing, has a net worth of at least $25,000,000
and is willing to service the Mortgage Loans and shall execute and deliver to
the Depositor, the Trustee, the Securities Administrator and the Master Servicer
an agreement accepting such delegation and assignment, which contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of such Servicer, with like effect as if originally
named as a party to this Agreement; provided, further that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior to
such assignment and delegation shall not be downgraded, withdrawn or qualified
as a result of such assignment and delegation.
(g) In connection with such appointment and assumption, the Master Servicer
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree, but not in
excess of the Servicing Fee. The Depositor, the Master Servicer and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
(h) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
this Agreement (including, without limitation, (i) all legal costs and expenses
and all due diligence costs and expenses associated with an evaluation of the
potential termination of a Servicer as a result of an event of default by such
Servicer and (ii) all costs and expenses associated with the complete transfer
of servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the
Mortgage Loans in accordance with this Agreement) are not fully and timely
reimbursed (or required to be reimbursed) by the terminated Servicer, the Master
Servicer shall be entitled to reimbursement of such costs and expenses from the
Distribution Account.
82
(i) The successor servicer will not assume liability for the
representations and warranties of the Servicer that it replaces.
(j) Any successor to any Servicer shall give notice to the related
Mortgagors of such change of servicer and shall, during the term of its service
as Servicer maintain in force the policy or policies that such Servicer is
required to maintain pursuant to this Agreement.
(k) No successor servicer will be responsible for delays attributable to
the applicable Servicer's failure to deliver information, defects in the
information supplied by such Servicer or other circumstances beyond the control
of the successor servicer. The successor servicer will make arrangements with
the applicable Servicer for the prompt and safe transfer of, and such Servicer
shall provide to the successor servicer, all necessary servicing files and
records, including (as deemed necessary by the successor servicer at such time):
(i) microfiche loan documentation, (ii) servicing system tapes, (iii) mortgage
loan payment history, (iv) collections history and (v) the trial balances, as of
the close of business on the day immediately preceding conversion to the
successor servicer, reflecting all applicable mortgage loan information. The
successor servicer shall have no responsibility and shall not be in default
hereunder nor incur any liability for any failure, error, malfunction or any
delay in carrying out any of its duties under this Agreement if any such failure
or delay results from the successor servicer acting in accordance with
information prepared or supplied by a Person other than the successor servicer
or the failure of any such Person to prepare or provide such information. The
successor servicer shall have no responsibility, shall not be in default and
shall incur no liability (i) for any act or failure to act by any third party,
including the servicer, or for any inaccuracy or omission in a notice or
communication received by the successor servicer from any third party or (ii)
which is due to or results from the invalidity, unenforceability of any Mortgage
Loan with applicable law or the breach or the inaccuracy of any representation
or warranty made with respect to any Mortgage Loan.
SECTION 5.09 Master Servicer Events of Default; Appointment of Successor.
(a) The occurrence of any one or more of the following events shall
constitute a "Master Servicer Event of Default":
(i) any failure by the Master Servicer (other than in its capacity as
successor servicer) to remit to the Securities Administrator for payment to the
Certificateholders any funds required to be remitted by the Master Servicer
under the terms of this Agreement;
(ii) any failure on the part of the Master Servicer (other than in its
capacity as successor servicer) duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Master
Servicer contained in this Agreement (other than any failure to make any
required Monthly Advance as described in clause (ix) of this Section 5.09) that
materially and adversely affects the interest of the Certificateholders, which
continues unremedied for a period of 30 days after the earlier of (i) the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Depositor or the Trustee, or
to the Master Servicer, the Depositor and the Trustee by Certificateholders
representing more than 50% of the total Voting Interests and (ii) actual
knowledge of such failure by a Responsible Officer of the Master Servicer;
83
(iii) a petition with, or decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment of a conservator
or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Master Servicer and such petition decree or order shall have remained in force
undischarged or unstayed for a period of 90 days;
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
it or of or relating to all or substantially all of its property;
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations;
(vi) the Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into another
entity or shall permit another entity to consolidate or merge into it, such that
the resulting entity does not meet the criteria for a successor master servicer
as specified in Section 5.08; or
(vii) any failure of the Master Servicer to make any Monthly Advances
required to be made by it hereunder within two (2) Business Days following
notice of such default by the Trustee.
(b) If the Trustee has actual knowledge of any Master Servicer Event of
Default described in clauses (i) through (vii) of this Section 5.09, then, in
each and every case, subject to applicable law, so long as any such Master
Servicer Event of Default shall not have been remedied within any period of time
prescribed by this Section 5.09, if any, the Trustee, by notice in writing to
the Master Servicer may, and shall, if so directed by the Certificateholders
representing at least a majority of the Voting Interests, terminate all of the
rights and obligations of the Master Servicer hereunder. In addition, if a
Master Servicer Event of Default described in clause (vii) of this Section 5.09
shall occur, then, in each and every case, subject to applicable law, so long as
such Master Servicer Event of Default shall not have been remedied within the
time period prescribed by clause (vii) of this Section 5.09, the Trustee, by
notice in writing to the Master Servicer, shall promptly terminate all of the
rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof.
(c) On or after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer, but only in its capacity as
Master Servicer under this Agreement, whether with respect to the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee (as successor Master
Servicer) or a successor designated by the Trustee pursuant to and under the
terms of this Agreement; and the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the defaulting Master Servicer as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination.
84
Notwithstanding anything to the contrary contained herein, in its role as
successor master servicer, the Trustee shall not be obligated to make any
Advance if it is prohibited from doing so under applicable law or determines
that such Advance, if made, would constitute a Non-recoverable Advance.
(d) The Trustee may, if it shall be unwilling to continue to so act, or
shall, if it is unable to so act, or does not satisfy the requirements of a
successor Master Servicer, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution
servicer, master servicer, servicing or mortgage servicing institution having a
net worth of not less than $25,000,000 and meeting such other standards for a
successor master servicer as are set forth in this Agreement, as the successor
to such Master Servicer in the assumption of all of the responsibilities, duties
or liabilities of a master servicer, like the Master Servicer. Such successor
master servicer may be an Affiliate of the Trustee; provided, however, that,
unless such Affiliate meets the net worth requirements and other standards set
forth herein for a successor master servicer, the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Issuing Entity and the Trustee for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted to the Master Servicer hereunder.
(e) The defaulting Master Servicer agrees to cooperate with the successor
master servicer in effecting the termination of the defaulting Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying each Servicer of the assignment of the master servicing
function and providing the successor master servicer all documents and records
in electronic or other form reasonably requested by it to enable the successor
master servicer to assume the defaulting Master Servicer's functions hereunder
and the transfer to the successor master servicer for administration by it of
all amounts which shall at the time be or should have been deposited by the
defaulting Master Servicer in the Distribution Account maintained by the
Securities Administrator and any other account or fund maintained by the Master
Servicer with respect to the Certificates or thereafter received with respect to
the Mortgage Loans.
(f) The Trustee or the successor master servicer shall be entitled to be
reimbursed by the Master Servicer (or by the Trust Fund, if the Master Servicer
is unable to fulfill its obligations hereunder) for all reasonable and properly
documented costs associated with the transfer of master servicing from the
predecessor Master Servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to master service the Mortgage Loans properly
and effectively. If the terminated Master Servicer does not pay such
reimbursement within 30 days of its receipt of an invoice therefor, such
reimbursement shall be an expense of the Trust Fund and the successor master
servicer shall be entitled to withdraw such reimbursement from amounts on
deposit in the Distribution Account pursuant to Section 8.01(e); provided, that,
the terminated Master Servicer shall reimburse the Trust Fund for any such
expense incurred by the Trust Fund; and provided, further, that the
85
Trustee shall decide whether and to what extent it is in the best interest of
the Certificateholders to pursue any remedy against any party obligated to make
such reimbursement.
(g) The successor master servicer shall have no responsibility for any act
or omission of the outgoing Master Servicer and shall have no liability relating
to the representations and warranties of the Master Servicer set forth in
Section 3.03.
(h) No successor master servicer shall be deemed to be in default hereunder
by reason of any failure to make, or any delay in making, any remittance or
payment hereunder or any portion thereof caused by (i) the failure of the Master
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, (ii) the failure of the Master Servicer to cooperate as required by this
Agreement, (iii) the failure of the Master Servicer to deliver the Mortgage Loan
data to the Trustee as required by this Agreement or (iv) restrictions imposed
by any regulatory authority having jurisdiction over the Master Servicer.
(i) Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 5.04 and Section 8.05 to the extent such
reimbursement relates to the period prior to such Master Servicer's termination.
(j) Notwithstanding anything herein to the contrary, in no event shall the
Trustee be liable for any Servicing Fee or Master Servicing Fee or for any
differential in the amount of the Servicing Fee or Master Servicing Fee paid
hereunder and the amount necessary to induce any successor servicer or successor
master servicer to act as successor servicer or successor master servicer, as
applicable, under this Agreement and the transactions set forth or provided for
herein.
SECTION 5.10 Waiver of Defaults.
The Certificateholders representing 66-2/3% of the Voting Interests may, on
behalf of all Certificateholders, waive any default or Master Servicer Event of
Default by the Master Servicer, except that a default in the making of any
required deposit to the Distribution Account that would result in a failure of
the Securities Administrator to make any required distribution of principal of
or interest on the Certificates may only be waived with the consent of 100% of
the affected Certificateholders. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
SECTION 5.11 Notification of Master Servicer Default.
(a) If any Master Servicer Event of Default shall occur, of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
promptly notify each Rating Agency of the nature and extent of such Master
Servicer Event of Default. The Securities Administrator or the Master Servicer
shall immediately give written notice to the Trustee upon the Master Servicer's
failure to remit Monthly Advances on the date specified herein.
86
(b) The Trustee shall within 45 days after the occurrence of any Master
Servicer Event of Default actually known to the Trustee, give written notice
thereof to the Certificateholders, unless such Master Servicer Event of Default
shall have been cured or waived prior to the issuance of such notice and within
such 45-day period.
(c) Upon termination of the Master Servicer or appointment of a successor
to the Master Servicer, in each case as provided herein, the Trustee shall
promptly mail notice thereof by first class mail to the Certificateholders at
their respective addresses appearing on the applicable register.
SECTION 5.12 Limitation on Liability of the Master Servicer.
(a) No provision of this Agreement shall be construed to relieve the Master
Servicer from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that the duties and
obligations of the Master Servicer shall be determined solely by the express
provisions of this Agreement, and the Master Servicer shall not be liable except
for the performance of such duties and obligations as are specifically set forth
in this Agreement. No implied covenants or obligations shall be read into this
Agreement against the Master Servicer and, in absence of bad faith on the part
of the Master Servicer, the Master Servicer may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any Certificates or opinions furnished to the Master Servicer and
conforming to the requirements of this Agreement.
(b) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
other parties hereto, the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such Person against any liability
that would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement.
SECTION 5.13 Master Servicer Covenants.
(a) If so requested by the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Master Servicer shall (i) notify the Depositor in
writing of (A) any material litigation or governmental proceedings pending
against the Master Servicer and (B) any affiliations or relationships that
develop following the closing date of this transaction between the Master
Servicer and any of the transaction parties (and any other parties identified in
writing by the requesting party) with respect to this transaction, and (ii)
provide to the Depositor a description of such proceedings, affiliations or
relationships.
(b) As a condition to the succession to the Master Servicer as master
servicer under this Agreement by any Person (i) into which the Master Servicer
may be merged or consolidated, or (ii) which may be appointed as a successor to
the Master Servicer, the Master Servicer shall provide to the Depositor, at
least 15 calendar days prior to the effective date of such succession
87
or appointment, (x) written notice to the Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Depositor, all information reasonably requested by the Depositor in order
to comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to any class of asset-backed securities.
(c) The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Custodial Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a loan by
loan basis, into which accounts shall be deposited within 48 hours (or as of
such other time specified in the related Servicing Agreement) of receipt all
collections of principal and interest on any Mortgage Loan and all collections
with respect to any REO Property received by a Servicer, including Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and
Advances made from the Servicer's own funds (less servicing compensation as
permitted by the applicable Servicing Agreement in the case of any Servicer) and
all other amounts to be deposited in the Custodial Account.
(d) To the extent required by the related Servicing Agreement and by the
related Mortgage Note and not violative of current law, the Master Servicer
shall enforce the obligation of each Servicer to establish and maintain one or
more Escrow Accounts and deposit and retain therein all collections from the
Mortgagors (or Advances by such Servicer) for the payment of taxes, assessments,
hazard insurance premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the Master Servicer to compel a Servicer to
establish an Escrow Account in violation of applicable law.
SECTION 5.14 Maintenance of Hazard Insurance and Other Insurance.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained fire, flood and hazard insurance with extended
coverage customary in the area where the Mortgaged Property is located in
accordance with the related Servicing Agreements. It is understood and agreed
that such insurance provided for in this Section 5.14 shall be with insurers
meeting the eligibility requirements set forth in the applicable Servicing
Agreement and that no earthquake or other additional insurance is to be required
of any Mortgagor or to be maintained on property acquired in respect of a
defaulted 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.
(b) To the extent required by the related Servicing Agreement, any amounts
collected by any Servicer, under any insurance policies (other than amounts to
be applied to the restoration or repair of the property subject to the related
Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the related Custodial Account. Any
cost incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer.
88
SECTION 5.15 Indemnification.
The Master Servicer agrees to indemnify the Depositor, the Seller, the
Issuing Entity, the Trustee, the Securities Administrator and each Servicer and
hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses that the Depositor, the Seller, the Issuing Entity,
the Trustee, the Securities Administrator or any Servicer may sustain as a
result of the Master Servicer's willful malfeasance, bad faith or gross
negligence in the performance of its duties or by reason of reckless disregard
of its obligations and duties hereunder. The Depositor, the Issuing Entity, the
Trustee, the Seller, the Securities Administrator or the related Servicer shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or with respect to the Mortgage Loans entitling the
Depositor, the Seller, the Issuing Entity, the Trustee, the Securities
Administrator or the related Servicer to indemnification under this Section
5.15, whereupon the Master Servicer shall assume the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim.
SECTION 5.16 Opinion.
On or before the Closing Date, the Master Servicer shall cause to be
delivered to other parties hereto and the Underwriter one or more Opinions of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the recipients thereof, as to the due authorization, execution and delivery
of this Agreement by the Master Servicer and the enforceability thereof.
SECTION 5.17 Realization Upon Defaulted Mortgage Loans; REO Property.
(a) The Master Servicer shall cause each Servicer (to the extent required
under the related Servicing Agreement) to foreclose upon or otherwise comparably
convert the ownership of Mortgaged 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, all in
accordance with the applicable Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trust Fund for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Master Servicer shall enforce the obligation of the Servicers, to the extent
provided in the applicable Servicing Agreement, to (i) cause the name of the
Trust Fund to be placed on the title to such REO Property and (ii) ensure that
the title to such REO Property references this Agreement. The Master Servicer
shall, to the extent provided in the applicable Servicing Agreement, cause the
applicable Servicer to sell any REO Property as expeditiously as possible and in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall cause the applicable
Servicer to protect and conserve such REO Property in the manner and to the
extent required by the applicable Servicing Agreement, subject to the REMIC
Provisions. In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall enforce the obligation of the related
Servicer to dispose of such Mortgaged Property within the time period specified
in the applicable Servicing
89
Agreement, but in any event within three years after the acquisition by the
Servicer for the Trust Fund (such period, the "REO Disposition Period") unless
(i) the Servicer provides to the Trustee, the Master Servicer and the Securities
Administrator an Opinion of Counsel to the effect that the holding by the Trust
Fund of such Mortgaged Property subsequent to three years after its acquisition
will not result in the imposition of taxes on "prohibited transactions" of the
Trust Fund as defined in Section 860F of the Code or under the law of any state
in which real property securing a Mortgage Loan owned by the Trust Fund is
located or cause any REMIC created hereunder to fail to qualify as a REMIC for
federal income tax purposes or for state tax purposes under the laws of any
state in which real property securing a Mortgage Loan owned by the Trust Fund is
located at any time that any Certificates are outstanding or (ii) the Servicer
shall have applied for and received an extension of such period from the
Internal Revenue Service, in which case the Trust Fund may continue to hold such
Mortgaged Property for the period of such extension.
(c) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Servicer Custodial Account.
(d) The applicable Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition of
such REO Property; provided that any such unreimbursed Advances as well as any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(e) To the extent provided in the Servicing Agreements: The Liquidation
Proceeds from the final disposition of the REO Property, net of any payment to
the applicable Servicer as provided above shall be deposited in the related
Servicer's Custodial Account on or prior to the Determination Date in the month
following receipt thereof and be remitted by wire transfer in immediately
available funds to the Master Servicer for deposit into the Distribution
Account.
Notwithstanding any other provision of this Agreement, the Master Servicer
shall not authorize any Servicer of any Mortgaged Property acquired by the Trust
Fund to be rented (or allowed to continue to be rented) or otherwise used for
the production of income by or on behalf of the Trust Fund in such a manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, (ii) result in the receipt by any REMIC created hereunder of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code or any "net income from foreclosure property" which is subject to
taxation under the REMIC Provisions or (iii) subject any REMIC created hereunder
to the imposition of any federal, state or local income taxes on the income
earned from such Mortgaged Property under Section 860G(c) of the Code or
otherwise, unless the Master Servicer or related Servicer, as applicable, has
agreed to indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
ARTICLE VI
THE SECURITIES ADMINISTRATOR
90
SECTION 6.01 Duties of the Securities Administrator.
(a) The Securities Administrator shall perform such duties and only such
duties that are specifically set forth in the this Agreement.
(b) The Securities Administrator, upon receipt of all resolutions,
Certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that the Securities Administrator shall not be responsible for the accuracy or
content of any resolution, certificate statement, opinion, report, document,
order or other instrument furnished by any Servicer, the Seller, the Master
Servicer or the Depositor. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Securities
Administrator shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, the Securities Administrator will provide notice to the
Certificateholders. Notwithstanding the foregoing, the Securities Administrator
shall have no obligation to reconcile, recompute or recalculate any remittances
or reports of any Servicer or the Cap Provider, and the Securities Administrator
may fully rely upon and shall have no liability with respect to information
provided by such Servicer or the Cap Provider.
(c) The Securities Administrator is hereby appointed as Paying Agent. On
each Distribution Date, the Securities Administrator, as Paying Agent, shall
make monthly payments and the final payment to the Certificateholders as
provided in Section 8.05 of this Agreement. On each Distribution Date, the
Securities Administrator shall make a Distribution Date Report available as
provided in Section 4.06.
(d) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Securities Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuing Entity and shall be, in the Securities
Administrator's opinion, no less favorable to the Issuing Entity than would be
available from unaffiliated parties.
(e) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Securities Administrator shall be subject to the same
standard of care and have the same rights, indemnifications and immunities as
the Trustee hereunder, including, without limitation, the right to reimbursement
and indemnification on behalf of the Issuing Entity from funds in the
Distribution Account for all losses, costs and expenses of any kind or nature
(including without limitation attorneys' fees and disbursements) incurred by the
Securities Administrator (including without limitation in its various capacities
as Paying Agent, Certificate Paying Agent and Certificate Registrar) in
connection with the performance of its duties hereunder and under the Cap
Agreement.
91
SECTION 6.02 Records.
The Securities Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuing Entity and the
Depositor upon reasonable advance notice at any time during normal business
hours.
SECTION 6.03 Compensation.
The compensation of the Securities Administrator shall be paid by the
Master Servicer from its Master Servicing Fee.
SECTION 6.04 No Joint Venture.
Nothing contained in this Agreement (a) shall constitute the Securities
Administrator, the Master Servicer, any Servicer, the Seller or the Depositor,
respectively, and any of the Issuing Entity or the Trustee, as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, (b) shall be construed to impose any joint liability as
such on any of them or (c) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf of
the others.
SECTION 6.05 Other Activities of Securities Administrator and the
Depositor.
Nothing herein shall prevent the Securities Administrator, the Depositor or
their respective Affiliates from engaging in other businesses or, in its sole
discretion, from acting in a similar capacity as an Securities Administrator for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuing Entity.
SECTION 6.06 Certain Matters Affecting the Securities Administrator.
(a) The Securities Administrator may request and conclusively rely upon,
and shall be fully protected in acting or refraining from acting upon, any
resolution, Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties.
(b) The Securities Administrator may consult with counsel of its selection
and any advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel.
(c) The Securities Administrator shall not be under any obligation to
exercise any of the powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to the
Securities Administrator reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be incurred therein or
thereby.
92
(d) The Securities Administrator shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to do so
by the Certificateholders entitled to at least 25% of the Voting Interests;
provided, however, that if the payment within a reasonable time to the
Securities Administrator of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Securities Administrator not reasonably assured to the Securities Administrator
by such Certificateholders, the Securities Administrator may require reasonable
indemnity satisfactory to it against such expense, or liability from such
Certificateholders as a condition to taking any such action.
(f) The Securities Administrator may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents, nominees,
attorneys or a custodian.
(g) The Securities Administrator shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of the
investment security).
(h) The Securities Administrator shall not be deemed to have notice of any
Trigger Event, Master Servicer Event of Default or any of the events specified
in Section 8.04(d) unless a Responsible Officer of the Securities Administrator
has actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Securities Administrator at the Corporate
Trust Office of the Securities Administrator, and such notice references the
Issuing Entity and this Agreement. The Securities Administrator shall not have
any responsibility or liability for any action or failure to act by the Master
Servicer, any Servicer, or the Seller, nor shall the Securities Administrator be
obligated to supervise or monitor the performance of the Master Servicer, any
Servicer or the Seller hereunder or otherwise;
(i) The rights, privileges, protections, immunities and benefits given to
the Securities Administrator, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, each Paying Agent,
the Certificate Registrar, agent, custodian and other Person employed to act
hereunder;
(j) The right of the Securities Administrator to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Securities Administrator shall not be answerable for other than its negligence
or willful misconduct in the performance of such act.
(k) Notwithstanding anything in this Agreement to the contrary, in no event
shall the Securities Administrator be liable to any Person for any act or
omission of the Master Servicer, the Servicer, the Trustee, the Cap Provider,
the Seller or the Custodian.
93
SECTION 6.07 Securities Administrator Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
authentication and countersignature on the Certificates) shall be taken as the
statements of the Issuing Entity, and neither the Securities Administrator, the
Paying Agent nor the Certificate Registrar assumes any responsibility for the
correctness of the same. The Securities Administrator does not make any
representation or warranty as to the validity or sufficiency of this Agreement,
or of the Certificates (other than the countersignature on the Certificates),
the Cap Agreement or of any Mortgage Loan or related document or of MERS or the
MERS System. The Securities Administrator shall not be accountable for the use
or application by the Depositor of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Depositor in respect of the Mortgage Loans or deposited in or withdrawn from the
Custodial Account by the Servicer. The Securities Administrator shall not have
any duty (a) to see to any recording, filing or depositing of this Agreement or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording, filing or
depositing thereof, (b) to see to any insurance or (c) to see to the payment or
discharge of any tax, assessment or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against, any
part of the Trust Fund.
SECTION 6.08 Securities Administrator May Own Certificates.
The Securities Administrator, in its individual capacity, or in any
capacity other than as Securities Administrator hereunder, may become the owner
or pledgee of any Certificates with the same rights as it would have if it were
not Securities Administrator, and may otherwise deal with the parties hereto.
SECTION 6.09 Eligibility Requirements for the Securities Administrator.
The Securities Administrator hereunder shall at all times be an entity duly
organized and validly existing under the laws of the United States of America or
any state thereof, authorized under such laws to exercise corporate trust
powers, and shall have a combined capital and surplus of at least $50,000,000, a
minimum long-term debt rating in the third highest rating category by each
Rating Agency, a minimum short-term debt rating in the second highest rating
category by a Rating Agency, and shall each be subject to supervision or
examination by federal or state authority. If such entity publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 6.09, the combined capital and surplus of such entity shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Securities Administrator shall
cease to be eligible in accordance with the provisions of this Section 6.09, the
Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal of the Securities Administrator.
(a) The Securities Administrator (including the Securities Administrator as
Paying Agent and as Certificate Registrar) may at any time resign and be
discharged from the trust
94
hereby created by giving written notice thereof to the Depositor, the Trustee,
the Master Servicer, each Servicer and each Rating Agency. Upon receiving such
notice of resignation of the Securities Administrator, the Depositor shall
promptly appoint a successor Securities Administrator that meets the
requirements in Section 6.11, by written instrument, in duplicate, one copy of
which instrument shall be delivered to each of the resigning Securities
Administrator and one copy to the successor Securities Administrator. If no
successor Securities Administrator shall have been so appointed and having
accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Securities Administrator may petition any court of
competent jurisdiction for the appointment of a successor Securities
Administrator.
(b) If at any time the Securities Administrator shall cease to be eligible
in accordance with the provisions of Section 6.11 or if at any time the
Securities Administrator shall be legally unable to act, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Securities Administrator or of its
property shall be appointed, or any public officer shall take charge or control
of the Securities Administrator or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor may remove the
Securities Administrator (including the Securities Administrator as Paying Agent
and as Certificate Registrar). If the Depositor removes the Securities
Administrator under the authority of the immediately preceding sentence, the
Depositor shall promptly appoint a successor Securities Administrator that meets
the requirements of Section 6.11, by written instrument, in duplicate, one copy
of which instrument shall be delivered to the successor Securities Administrator
and one copy to each of the Master Servicer and the Servicer.
(c) The Certificateholders entitled to at least 51% of the Voting Interests
may at any time remove the Securities Administrator (including the Securities
Administrator as Paying Agent and as Certificate Registrar) and appoint a
successor Securities Administrator by written instrument or instruments signed
by such Certificateholders or their attorneys-in-fact duly authorized, one
complete set of which instruments shall be delivered to the Depositor, one
complete set to the Securities Administrator so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Certificateholders, the Securities Administrator and the Master Servicer and
each Servicer by the Depositor.
SECTION 6.11 Successor Securities Administrator.
(a) Any successor Securities Administrator appointed as provided in this
Section 6.11 shall execute, acknowledge and deliver to the Depositor, the
Issuing Entity, the Trustee, each Servicer, the Master Servicer and to its
predecessor Securities Administrator an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
Securities Administrator shall become effective, and such successor Securities
Administrator without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Securities Administrator.
The Depositor, the Issuing Entity, the Trustee, the Servicer, the Master
Servicer and the predecessor Securities Administrator shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Securities
Administrator, all such rights, powers, duties and obligations.
95
(b) No successor Securities Administrator shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 6.09, and the appointment of such successor Securities Administrator
shall not result in a downgrading of the Classes of Certificates rated by any
Rating Agency, as evidenced by a letter from each Rating Agency.
(c) Upon acceptance of appointment by a successor Securities Administrator
as provided in this Section 6.11, the successor Securities Administrator shall
mail notice of such appointment hereunder to all Holders of Certificates at
their addresses as shown in the Certificate Register and to the Rating Agencies.
SECTION 6.12 Merger or Consolidation of Securities Administrator.
Any corporation or association into which the Securities Administrator may
be merged or converted or with which it may be consolidated or any corporation
or association resulting from any merger, conversion or consolidation to which
the Securities Administrator shall be a party, or any corporation or association
succeeding to the business of the Securities Administrator shall be the
successor of the Securities Administrator hereunder, provided such corporation
or association shall be eligible under the provisions of Section 6.09, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
SECTION 6.13 Limitation of Liability.
(a) No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement; the Securities
Administrator shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Securities Administrator and, in the absence of bad faith on the part of the
Securities Administrator, the Securities Administrator may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon any Certificates or opinions furnished to the Securities
Administrator that conform to the requirements of this Agreement;
(ii) The Securities Administrator shall not be liable for an error of
judgment made in good faith by a Responsible Officer of the Securities
Administrator unless it shall be proved that the Securities Administrator was
negligent in ascertaining or investigating the facts related thereto;
(iii) The Securities Administrator shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good faith
in accordance with the consent or at the direction of Certificateholder as
provided herein relating to the time, method and place of conducting any remedy
pursuant to this Agreement, or exercising or omitting to
96
exercise any trust or power conferred upon the Securities Administrator under
this Agreement; and
(iv) The Securities Administrator shall not be required to expend or
risk its own funds or otherwise incur financial or other liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not assured to it, and none of the provisions contained in this Agreement shall
in any event require the Securities Administrator to perform, or be responsible
for the manner of performance of, any of the obligations of the Servicers under
this Agreement.
SECTION 6.14 Opinion.
On or before the Closing Date, the Securities Administrator shall cause to
be delivered to other parties hereto and the Underwriters one or more Opinions
of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the recipients thereof, as to the due authorization, execution
and delivery of this Agreement by the Securities Administrator and the
enforceability thereof.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) The Trustee undertakes to perform only such duties as are specifically
set forth in this Agreement and shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this Agreement
and no implied covenants or obligations shall be read into this Agreement
against the Trustee.
(b) In the absence of bad faith on its part, the Trustee may conclusively
rely upon Certificates or opinions furnished to the Trustee as to the truth of
the statements and the correctness of the opinions expressed therein; however,
the Trustee shall examine the Certificates and opinions to determine whether or
not they conform on their face to the requirements of this Agreement.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, its own willful misconduct or its own
bad faith, except that:
(i) this paragraph does not limit the effect of paragraphs (a) and (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, that the Trustee's conduct does not constitute willful
misconduct, negligence or bad faith; and
97
(iv) the Trustee shall not be required to take notice or be deemed to
have notice or knowledge of (A) any failure by any Servicer or the Master
Servicer to comply with their obligations hereunder or (B) any Servicer Event of
Default or a Master Servicer Event of Default, unless a Responsible Officer of
the Trustee assigned to and working in its corporate trust department obtains
actual knowledge of such Servicer Event of Default or Master Servicer Event of
Default or shall have received written notice thereof. In the absence of such
actual knowledge or notice, the Trustee may conclusively assume that there is no
Servicer Event of Default or Master Servicer Event of Default.
(d) Money held in trust by the Trustee, if any, need not be segregated from
other funds except to the extent required by law or the terms of this Agreement.
(e) No provision of this Agreement shall require the Trustee to expend,
advance or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
(f) Every provision of this Agreement relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.01 and Section 7.02.
(g) The Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Trust Fund, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Trustee is a party, except as expressly provided (i) in accordance with the
powers granted to and the authority conferred upon the Trustee pursuant to this
Agreement and (ii) in accordance with any document or instruction delivered to
the Trustee pursuant to the terms of this Agreement. No implied duties or
obligations shall be read into this Agreement against the Trustee. The Trustee
agrees that it will promptly take all action as may be necessary to discharge
any liens on any part of the Trust Fund that result from actions by, or claims
against itself (in its individual capacity, and not in the capacity of Trustee)
that are not related to the administration of the Trust Fund.
(h) The Trustee shall not be under any obligation to exercise any of the
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction of
any of the Certificateholders, pursuant to the provisions of this Agreement,
unless it shall have been offered reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred therein
or thereby.
SECTION 7.02 Rights of Trustee.
(a) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel, which shall not be at the
expense of the Trustee. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on an Officer's Certificate or
Opinion of Counsel. The right of the Trustee to perform any
98
discretionary act enumerated in this Agreement shall not be construed as a duty
and the Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act.
(b) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, provided that the Trustee shall not be
responsible for any misconduct or negligence on the part if any agent or
attorney appointed with due care by it hereunder.
(c) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, that the Trustee's conduct does not constitute willful
misconduct, negligence or bad faith.
(d) The Trustee may consult with counsel, and any Opinion of Counsel with
respect to legal matters relating to this Agreement and the Certificates shall
be full and complete authorization and protection from liability in respect to
any action taken, omitted or suffered by it hereunder in good faith and in
accordance with any Opinion of Counsel of such counsel.
(e) In the event that the Trustee is also acting as Master Servicer
hereunder, the rights and protections afforded to the Trustee pursuant to this
Article VII shall be afforded to such Master Servicer.
(f) The permissive rights of the Trustee enumerated herein shall not be
construed as duties.
(g) In order to comply with its duties under the USA Patriot Act of 2001,
the Securities Administrator shall obtain and verify certain documentation from
certain other parties to this Agreement, including, but not limited to, each
party's name, address, and other identifying information.
(h) Should the Trustee deem the nature of any action required on its part
to be unclear, the Trustee may require prior to such action that it be provided
by the Depositor with reasonable further instructions.
(i) Any permissive right to the Trustee enumerated hereunder shall not be
construed as a duty.
SECTION 7.03 Trustee Not Liable for Certificates.
The Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates or of any Mortgage Loan, or related
document save that the Trustee represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms except that such
enforceability may be subject to (a) applicable bankruptcy and insolvency laws
and other laws affecting the enforcement of the rights of creditors generally,
and (b) general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Trustee shall not be
accountable for the use or application by the Depositor of funds paid to the
Depositor in
99
consideration of the assignment of the Mortgage Loans to the Trust Fund by the
Depositor or for the use or application of any funds deposited into the
Custodial Account, Distribution Account or any other fund or account maintained
with respect to the Certificates. The Trustee shall not be responsible for the
legality or validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be issued
hereunder. The Trustee shall not have any responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement.
SECTION 7.04 Trustee May Own Certificates.
The Trustee and any Affiliate or agent of the Trustee, in its individual or
any other capacity may become the owner or pledgee of Certificates and may
transact banking and trust business with the other parties hereto and their
Affiliates with the same rights it would have if it were not the Trustee or such
Affiliate or agent.
SECTION 7.05 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) an institution insured by
the FDIC, (ii) a corporation or national banking association, organized and
doing business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority and (iii) not an Affiliate of the
Servicer, the Master Servicer or the Securities Administrator. If such
corporation or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section, the
combined capital and surplus of such corporation or national banking association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
7.06.
SECTION 7.06 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice thereof to the Depositor, the Servicer,
the Master Servicer and the Securities Administrator. Upon receiving such notice
of resignation, the Depositor will promptly appoint a successor trustee by
written instrument, one copy of which instrument shall be delivered to the
resigning Trustee, one copy to the successor trustee and one copy each to the
Servicer, the Master Servicer and the Securities Administrator. If no successor
trustee shall have been so appointed and shall have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.05 and shall fail to resign after written
request therefor by the Depositor, (ii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or
100
a receiver of the Trustee of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)
the Trustee shall fail to observe or perform in any material respect any of the
covenants or agreements of the Trustee contained in this Agreement or (iv) the
continued use of the Trustee would result in a downgrading, withdrawal or
qualification of the rating by any Rating Agency of any Class of Offered
Certificates with a rating, then the Depositor shall remove the Trustee and the
Depositor shall appoint a successor trustee by written instrument, one copy of
which instrument shall be delivered to the Trustee, one copy to the successor
trustee and one copy each to the Servicer, the Master Servicer and the
Securities Administrator.
(c) The Holders of a Majority in Interest of the Certificates may at any
time upon 30 days written notice to the Trustee and to the Depositor remove the
Trustee by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee and one copy each to the
Servicer, the Master Servicer and the Securities Administrator. The Depositor
shall thereupon appoint a successor trustee in accordance with this Section
mutually acceptable to the Depositor, the Servicer, the Master Servicer and the
Securities Administrator.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.07.
SECTION 7.07 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 7.06 shall
execute, acknowledge and deliver to the Depositor, the Servicer, the Master
Servicer, the Securities Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee herein. A
predecessor trustee shall deliver to the successor trustee, all Mortgage Files
and documents and statements related to each Mortgage File held by it hereunder,
if any, and shall duly assign, transfer, deliver and pay over to the successor
trustee the entire Trust Fund, together with all necessary instruments of
transfer and assignment or other documents properly executed necessary to effect
such transfer and such of the records or copies thereof maintained by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the successor Trustee and
the predecessor trustee shall execute and deliver such other instruments and do
such other things as may reasonably be required to more fully and certainly vest
and confirm in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 7.05.
101
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section, the predecessor trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to any Rating Agency. The expenses of such
mailing shall be borne by the predecessor trustee.
SECTION 7.08 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the business of the Trustee, shall be the successor to the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided that such Person shall be eligible under the provisions of Section
7.05.
SECTION 7.09 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time the Trustee,
the Depositor or a Holder of a Majority in Interest of each Class of
Certificates shall have the power from time to time to appoint one or more
Persons, approved by the Trustee, to act either as co-trustees jointly with the
Trustee, or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee has been advised by the Trustee that such separate trustee or co-trustee
is necessary or advisable) under the laws of any state in which a property
securing a Mortgage Loan is located or for the purpose of otherwise conforming
to any legal requirement, restriction or condition in any state in which a
property securing a Mortgage Loan is located or in any state in which any
portion of the Trust Fund is located. The separate Trustees, co-trustees, or
custodians so appointed shall be trustees or custodians for the benefit of all
the Certificateholders and shall have such powers, rights and remedies as shall
be specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee, co-trustee, or custodian
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations, including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction, shall be exercised and performed by
such separate trustee, co-trustee, or custodian;
102
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing a Majority in
Interest of the Voting Interests may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy given
to the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.05 and no notice to Certificateholders of the appointment shall be required
under Section 7.07.
(f) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the co-trustees
requested by the Trustee to be so appointed (which compensation shall not reduce
any compensation payable to the Trustee) and, if paid by the Trustee, shall be a
reimbursable expense pursuant to Section 7.11.
SECTION 7.10 Indemnification of Trustee.
The Trustee and its directors, officers, employees and agents shall be
entitled to indemnification from the Trust Fund for any loss, liability or
expense incurred in connection with any legal proceeding or incurred without
negligence or willful misconduct on their part, arising out of, or in connection
with, the acceptance or administration of the trusts created hereunder or in
connection with the performance of their duties hereunder, including any
applicable fees and expenses payable pursuant to Section 7.11 and the costs and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder.
103
Such compensation and reimbursement shall not be limited by any provision
of law in regard to compensation of a trustee of an express trust. The
provisions of this Section 7.10 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
SECTION 7.11 Fees and Expenses of Trustee.
The Trustee shall be entitled to a fee payable by the Master Servicer from
the Master Servicing Fee. The Trustee shall be entitled to reimbursement by the
Trust Fund of all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with this Agreement (including fees and
expenses of its counsel and all persons not regularly in its employment), except
for expenses, disbursements and advances incurred by the Trustee in the routine
administration of its duties hereunder and any such expenses arising from its
negligence, bad faith or willful misconduct.
ARTICLE VIII
TRUST ADMINISTRATION
SECTION 8.01 Distribution Account.
(a) The Securities Administrator shall establish and maintain accounts (the
"Distribution Account"), designated "Distribution Account of ▇▇▇▇▇ Fargo Bank,
N.A., as Securities Administrator, f/b/o Luminent Mortgage Trust 2006-6." The
Distribution Account shall be established as an Eligible Account. All funds
required to be deposited in the Distribution Account shall be held in trust for
the Trustee until withdrawn in accordance with Section 8.05. The Securities
Administrator shall segregate and hold all funds collected and received pursuant
to Servicing Agreements separate and apart from any of its own funds and general
assets. Within five Business Days following any request of the Trustee, the
Securities Administrator shall provide the Trustee with written confirmation of
the existence of such Distribution Account.
(b) Funds on deposit in the Distribution Account may be invested at the
direction of the Master Servicer, but only in Permitted Investments selected by
the Master Servicer, which Permitted Investments shall mature not later than the
Distribution Date next following the date of such investment. All income and
gain realized from any such investment shall be for the benefit of the Master
Servicer. The amount of any losses incurred in respect of any such investments
shall be deposited in the Distribution Account by the Master Servicer out of its
own funds immediately as such losses are realized.
(c) The Distribution Account shall initially be maintained at ▇▇▇▇▇ Fargo
Bank, N.A. If an existing Distribution Account ceases to be an Eligible Account,
the Securities Administrator shall establish a new Distribution Account that is
an Eligible Account within ten days and transfer all funds and investment
property on deposit in such existing Distribution Account into such new
Distribution Account. The Securities Administrator shall give to the Master
Servicer and the Trustee prior written notice of the name and address of any
other
104
depository institution at which the Distribution Account is maintained and the
account number of such Distribution Account.
(d) The Securities Administrator shall promptly upon receipt deposit or
cause to be deposited into the Distribution Account all amounts received by it
from any Servicer pursuant to the provisions of the respective Servicing
Agreements. On each Distribution Date, the entire amount on deposit in the
Distribution Account (subject to permitted withdrawals) shall be applied to make
the required distributions of principal and/or interest on each Class of
Certificates.
(e) The Securities Administrator shall make withdrawals from the
Distribution Account only for the purposes set forth in Section 8.05 and for the
following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error;
(ii) to reimburse the Master Servicer or the related Servicer, as
applicable, for Monthly Advances or Servicing Advances made by any such party,
such right to reimbursement pursuant to this subclause (ii) being limited to
amounts received on or in respect of a particular Mortgage Loan (including, for
this purpose, Liquidation Proceeds and Insurance Proceeds, to the extent related
to such Mortgage Loan) which represent late recoveries (net of the applicable
portion of the applicable Servicing Fee) of payments of principal or interest on
a Mortgage Loan respecting which any such Advance was made, it being understood,
in the case of any such reimbursement, that the Master Servicer's or any
Servicer's right thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse the Master Servicer or the related Servicer
following a final liquidation of a Mortgage Loan for any previously unreimbursed
Monthly Advances made by any such party (A) that such party determines in good
faith will not be recoverable from amounts representing late recoveries of
payments of principal or interest respecting the particular Mortgage Loan as to
which such Advance was made or from Liquidation Proceeds or Insurance Proceeds
with respect to such Mortgage Loan and/or (B) to the extent that such
unreimbursed Monthly Advances exceed the related Liquidation Proceeds or
Insurance Proceeds, it being understood, in the case of each such reimbursement,
that the Master Servicer's or any Servicer's right thereto shall be prior to the
rights of the Certificateholders;
(iv) to reimburse the Master Servicer or the related Servicer from
related Liquidation Proceeds for amounts expended by it in good faith in
connection with the restoration of the related Mortgaged Property and, to the
extent that Liquidation Proceeds after such reimbursement exceed the unpaid
principal balance of the related Mortgage Loan, together with accrued and unpaid
interest thereon at the applicable Mortgage Rate less the applicable Servicing
Fee Rate for such Mortgage Loan to the Due Date next succeeding the date of its
receipt of such Liquidation Proceeds, to pay to itself or the related Servicer
out of such excess the amount of any unpaid assumption fees, late payment
charges or other Mortgagor charges on the related Mortgage Loan and to retain
any excess remaining thereafter as additional servicing compensation, it being
understood, in the case of any such reimbursement or payment, that such Master
Servicer's or any Servicer's right thereto shall be prior to the rights of the
Certificateholders;
105
(v) to pay to the Seller or any Servicer, as applicable, with respect
to each Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
remitted on the date on which the related purchase was effected, and to pay to
the applicable party any Monthly Advances and Servicing Advances to the extent
specified in the definition of Repurchase Price;
(vi) to the extent not paid by the related Servicer, to pay any
insurance premium with respect to a Mortgage Loan;
(vii) to pay to the Master Servicer income earned on the investment of
funds on deposit in the Distribution Account;
(viii) on or immediately prior to each Distribution Date, to pay to
the Master Servicer the Master Servicing Fee;
(ix) to make payment of expenses and indemnities to itself, the Master
Servicer, the Trustee, the Custodian and the related Servicer pursuant to any
provision of this Agreement, the Custodial Agreement or any Servicing Agreement;
(x) to reimburse a successor master servicer (solely in its capacity
as successor master servicer), for any fee or advance occasioned by a
termination of the Master Servicer, and the assumption of such duties by the
Trustee or a successor master servicer appointed by the Trustee pursuant to
Section 5.09, in each case to the extent not reimbursed by the terminated Master
Servicer, it being understood, in the case of any such reimbursement or payment,
that the right of the Master Servicer or the Trustee thereto shall be prior to
the rights of the Certificateholders; and
(xi) to clear and terminate the Distribution Account pursuant to
Article XI.
In connection with withdrawals pursuant to subclauses (ii), (iii) and (v)
above, the Master Servicer's or the Servicer's or such other Person's
entitlement thereto is limited to collections or other recoveries on the related
Mortgage Loan. The Securities Administrator shall therefore keep and maintain a
separate accounting for each Mortgage Loan for the purpose of justifying any
withdrawal from the Distribution Account it maintains pursuant to such
subclauses.
SECTION 8.02 Reserve Account
(a) The Securities Administrator shall establish and maintain a time,
demand or deposit account ("Reserve Account") designated "Reserve Account of
HSBC Bank USA, National Association, as trustee f/b/o Luminent Mortgage Trust
2006-6." The Reserve Account shall be established as an Eligible Account. All
funds required to be deposited in the Reserve Account shall be held for the
benefit of the Certificateholders until withdrawn in accordance with Section
8.02(b). The Securities Administrator shall deposit in the Reserve Account on
the date received by it, any Net WAC Cap Carryover Amounts received for the
related Distribution Date pursuant to Section 8.05, which amounts shall be
maintained separate and apart from any of the Securities Administrator's own
fund and general assets. Funds in the Reserve Account shall not be invested. Any
amounts remaining in the Reserve Account when it is closed shall be payable to
the Class C Certificates.
106
(b) On each Distribution Date, the Securities Administrator shall withdraw
from the Reserve Account any amounts deposited in the Reserve Account pursuant
to Section 8.05(a)(iii)(V), and apply it in the following order of priority:
(i) to the Class A Certificates (other than the Class A-2A
Certificates prior to the Termination of the Cap Agreement), and to the REMIC
Regular Interest portion of the Class 2-A2 Certificates pro rata, any Net WAC
Cap Carryover Amount for such Class to the extent remaining unpaid;
(ii) to the Class B-1 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid;
(iii) to the Class B-2 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid;
(iv) to the Class B-3 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid;
(v) to the Class B-4 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid;
(vi) to the Class B-5 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid;
(vii) to the Class B-6 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid;
(viii) to the Class B-7 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid;
(ix) to the Class B-8 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid;
(x) to the Class B-9 Certificates, any Net WAC Cap Carryover Amount
for such Class to the extent remaining unpaid; and
(xi) to the Class C Certificates, any remaining amount on deposit in
the Reserve Account.
(c) The Reserve Account shall not be an asset of any REMIC created pursuant
to this Agreement. The Reserve Account will constitute an "outside reserve fund"
for purposes of the REMIC Provisions. The beneficial owner of the Reserve
Account is the Class C Certificateholder. For all federal tax purposes, amounts
transferred or reimbursed to the Reserve Account in respect of the Class C
Distribution Amount shall be treated as a distribution by the Securities
Administrator from REMIC II to the Class C Interest and from the Class C
Interest to the Class C Certificateholder.
107
(d) Any Net WAC Cap Carryover Amounts (exclusive of payments from the Cap
Agreement) paid by the Securities Administrator pursuant to this Section 8.02 to
the Class C Certificates shall be accounted for by the Securities Administrator
as amounts paid first as a distribution from REMIC II to the holder of Class C
Interest and from the holder of the Class C Interest to the Class C Certificates
and then to the relevant Certificates from the Reserve Account. In addition, the
Securities Administrator shall account for the rights of Holders of the Class A
and Class B Certificates to receive payments of Net WAC Cap Carryover Amounts as
rights in limited recourse interest rate cap contracts written by the Class C
Certificates in favor of the Holders of the Class A Certificates and Class B
Certificates.
(e) For federal tax return and information reporting, the right of the
Holders of the Class A and Class B Certificates to receive payments under this
Section shall be assigned a value of zero.
SECTION 8.03 Calculation of LIBOR.
(a) With respect to each Distribution Date, one-month LIBOR will equal the
interbank offered rate for one-month United States dollar deposits in the London
market as quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the
second London Business Day prior to the first day of the related Accrual Period.
"Telerate Page 3750" means the display designated as page 3750 on the Moneyline
Telerate and after December 31, 2006, the display designated as Reuters LIBOR01
on Reuters, or any other page as may replace page 3750 on that service for the
purpose of displaying London interbank offered rates of major banks. If the rate
does not appear on the page or any other page as may replace that page on that
service (or if that service is no longer offered, any other service for
displaying LIBOR or comparable rates as may be selected by the Securities
Administrator after consultation with the Depositor), the rate will be the
reference bank rate.
(b) The reference bank rate will be determined on the basis of the rates at
which deposits in U.S. Dollars are offered by the reference banks, which shall
be three major banks that are engaged in transactions in the London interbank
market, selected by the Securities Administrator after consultation with the
Depositor, as of 11:00 A.M., London time, on the day that is two LIBOR Business
Days prior to the first day of the related Accrual Period to prime banks in the
London interbank market for a period of one month in amounts equal to the
aggregate Certificate Principal Balances of the Certificates. The Securities
Administrator will request the principal London office of each of the reference
banks to provide a quotation of its rate. If at least two quotations are
provided, the rate will be the arithmetic mean of the quotations. If on the
related date fewer than two quotations are provided as requested, the rate will
be the arithmetic mean of the rates quoted by one or more major banks in New
York City, selected by the Securities Administrator after consultation with the
Depositor, as of 11:00 A.M., New York City time, on the date for loans in U.S.
Dollars to leading European banks for a period of one month in amounts equal to
the aggregate Certificate Principal Balances of the Certificates. If no
quotations can be obtained, the rate will be one-month LIBOR for the prior
Distribution Date. The establishment of one-month LIBOR on each Interest
Determination Date by the Securities Administrator and the Securities
Administrator's calculation of the rate of interest applicable to the related
Certificates for the related Interest Accrual Period shall, in the absence of
manifest error, be final and binding.
108
SECTION 8.04 Supplemental Interest Trust.
(a) A separate trust is hereby established (the "Supplemental Interest
Trust"), into which the Depositor shall deposit the Cap Agreement. The
Supplemental Interest Trust shall be maintained by the Securities Administrator,
which is hereby appointed Supplemental Interest Trust Trustee and hereby accepts
such appointment. No later than the Closing Date, the Supplemental Interest
Trust Trustee shall establish and maintain a separate, segregated trust account
(the "Cap Account") to be held in the Supplemental Interest Trust, titled,
"▇▇▇▇▇ Fargo Bank, N.A. as Supplemental Interest Trust Trustee, in trust for
Luminent Mortgage Trust 2006-6." The account shall be an Eligible Account and
funds on deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including, without limitation, other moneys
of the Trustee held pursuant to this Agreement. Amounts therein shall be held
uninvested.
(b) On each Distribution Date, the Supplemental Interest Trust Trustee
shall deposit into the Cap Account any amounts received by it from the Cap
Provider. The Cap Account shall be an "outside reserve fund" for federal income
tax purposes, and shall not be an asset of any Trust REMIC.
(c) For federal income tax purposes, the Supplemental Interest Trust shall
be owned by the holder of the Class A-2A Certificates.
(d) To the extent that the Supplemental Interest Trust is determined to be
a separate legal entity from the Supplemental Interest Trust Trustee, any
obligation of the Supplemental Interest Trust Trustee under the Cap Agreement
shall be deemed to be an obligation of the Supplemental Interest Trust.
(e) With respect to the failure of the Cap Provider to perform any of its
obligations under the Cap Agreement, the breach by the Cap Provider of any of
its representations and warranties made pursuant to the Cap Agreement or the
termination of the Cap Agreement, the Supplemental Interest Trust Trustee shall
send any notices and make any demands, on behalf of the Supplemental Interest
Trust, as are required under the Cap Agreement.
(f) The Supplemental Interest Trust Trustee shall treat the Holders of the
Class A-2A Certificates as having entered into a notional principal contract.
Pursuant to each such notional principal contract, all Holders of Class A-2A
Certificates shall be treated as having agreed to pay, on each Distribution
Date, to the Cap Provider an aggregate amount equal to the (i) the amount
payable on such Distribution Date on the REMIC II Regular Interest corresponding
to such Class of Certificates in respect of Net WAC Rate Carryover Amounts and
Additional Negative Amortization Carryover Amounts. In addition, pursuant to
such notional principal contract, the Cap Provider shall be treated as having
agreed to pay Net WAC Cap Carryover Amounts and Additional Negative Amortization
Amounts to the Holders of the Class A-2A Certificates in accordance with the
terms of this Agreement. Any payments to the Certificates from amounts deemed
received in respect of this notional principal contract shall not be payments
with respect to a Regular Interest in a REMIC within the meaning of Code Section
860G(a)(1). However, any payment from the Certificates attributable to any Net
WAC Cap Carryover Amounts and Additional Negative Amortization Carryover Amounts
shall be treated
109
for tax purposes as having been received by the Holders of such Certificates in
respect of the corresponding REMIC II Regular Interest and as having been paid
by such Holders to the Supplemental Interest Trust Trustee pursuant to the
notional principal contract. Thus, each Class A-2A Certificate shall be treated
as representing not only ownership of a REMIC II Regular Interest, but also
ownership of an interest in, and obligations with respect to, a notional
principal contract related to the Cap Agreement. For tax reporting purposes, the
value of the notional principal contract will be $60,012.96.
(g) The Securities Administrator, in its capacity as Supplemental Interest
Trust Trustee, is hereby directed to execute and deliver, on behalf of the
Supplemental Interest Trust, the Cap Agreement on the Closing Date. The
Supplement Interest Trust Trustee may, and at the direction of a Majority In
Interest of the Certificates shall, exercise any right that the Supplemental
Interest Trust Trustee may have to designate an "Early Termination Date" under
the Cap Agreement upon the occurrence of an "Event of Default" or a "Termination
Event" thereunder of which a Responsible Officer of the Supplemental Interest
Trust Trustee has actual knowledge. Upon the occurrence of an "Early Termination
Date" under the Cap Agreement, the Depositor shall use reasonable efforts to
replace the Cap Agreement with one that is furnished by a replacement for the
Cap Provider acceptable to each Rating Agency, and the Supplemental Interest
Trust Trustee shall hold in trust any amount that is paid to it by the Cap
Provider in respect of any such "Early Termination Date" and apply such amount
to the purchase of the related replacement. If any portion of such amount cannot
be so used (either because a replacement for the Cap Agreement is not available
or such amount exceeds the amount necessary to purchase such replacement), the
Supplemental Interest Trust Trustee shall deposit such portion in the Reserve
Account. If such amount is insufficient to purchase a replacement for the Cap
Agreement, the Supplemental Interest Trust Trustee shall apply such amount to
replace so much of the Cap Agreement as it is possible to replace with such
amount. If the Cap Provider transfers its rights and obligations under the Cap
Agreement to another party in accordance therewith or the Cap Agreement is
replaced with one that is furnished by a replacement for the Cap Provider
acceptable to each Rating Agency in accordance with this Agreement, then the
Supplemental Interest Trust Trustee is hereby instructed to execute and deliver
the related replacement for or novation of the Cap Agreement.
In addition, for any period that and for so long as the Securities
Administrator is required to file any report with the Commission pursuant to
this Agreement, the Depositor shall furnish to the Securities Administrator,
within five (5) Business Days prior to each Distribution Date, the "significance
estimate" of the Cap Agreement calculated in accordance with Item 1115 of
Regulation AB as of the last Business Day of the immediately preceding calendar
month. Upon its receipt from the Depositor of each "significance estimate" for
the Cap Agreement, the Securities Administrator shall, on the basis of such
"significance estimate," calculate the Cap Agreement's "significance percentage"
of the Class Certificate Balance of the Class A-2A Certificates as of the date
of such "significance estimate" in accordance with Item 1115 of Regulation AB.
If the "significance percentage" meets either of the thresholds detailed in Item
1115(b)(1) or 1115(b)(2) of Regulation AB, the Securities Administrator will
provide written notice to the Depositor. The Depositor shall be obligated to
obtain from the Cap Provider any information required under Regulation AB to the
extent required under the Cap Agreement and to provide to the Securities
Administrator any information that may be required to be included in any Form
10-D, Form 8-K or Form 10-K relating to the Cap Agreement or written
notification
110
instructing the Securities Administrator that filings regarding the Cap Provider
are not necessary for such Distribution Date. The Depositor shall be responsible
for any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with the filing of any Form 10-D, Form 8-K or Form
10-K relating to the Cap Agreement pursuant to this section.
SECTION 8.05 Priorities of Distribution.
(a) On each Distribution Date, the Securities Administrator shall withdraw
Available Funds then on deposit in the Distribution Account and apply such funds
in the following order of priority:
(i) the Interest Distribution Amount for such Distribution Date shall
be distributed in the following order of priority:
(A) concurrently, to the Class A Certificates, pro rata, based
upon the amount that the Adjusted Accrued Certificate Interest for
such Class bears to the aggregate Adjusted Accrued Certificate
Interest for all Class A Certificates for such Distribution Date, (in
addition, with respect to the Class A-2A Certificates, from any
payments made by the Cap Provider to the Supplemental Interest Trust,
used solely to pay such Certificate's Accrued Certificate Interest for
such Distribution Date), to make payments of Accrued Certificate
Interest for such Class;
(B) to the Class B-1 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date;
(C) to the Class B-2 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date;
(D) to the Class B-3 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date;
(E) to the Class B-4 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date;
(F) to the Class B-5 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date;
(G) to the Class B-6 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date;
(H) to the Class B-7 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date;
(I) to the Class B-8 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date;
(J) to the Class B-9 Certificates, its Adjusted Accrued
Certificate Interest for such Distribution Date; and
111
(K) any remaining amount, for distribution as Excess Cash Flow
pursuant to clause (iii) of this Section 8.05(a).
(ii) The Principal Distribution Amount shall be distributed in the
following order of priority:
(A) on any Distribution Date prior to the Stepdown Date or if a
Trigger Event is in effect on such Distribution Date, the Principal
Distribution Amount for such Distribution Date shall be distributed in
the following order of priority:
(1) concurrently, to the Class A Certificates, pro rata,
based upon the amount that the Certificate Principal Balance for
such Class bears to the aggregate Certificate Principal Balance
for the Class A Certificates (both determined on the close of
business on the Business Day immediately preceding such
Distribution Date), in reduction of their Certificate Principal
Balances, until reduced to zero;
(2) to the Class B-1 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero;
(3) to the Class B-2 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero;
(4) to the Class B-3 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero;
(5) to the Class B-4 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero;
(6) to the Class B-5 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero;
(7) to the Class B-6 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero;
(8) to the Class B-7 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero;
(9) to the Class B-8 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero;
(10) to the Class B-9 Certificates, in reduction of its
Certificate Principal Balance, until reduced to zero; and
(11) any remaining amount, for distribution as Excess Cash
Flow pursuant to clause (iii) of this Section 8.05(a).
112
(B) on any other Distribution Date on or after the Stepdown Date
and if a Trigger Event is not in effect, the Principal Distribution
Amount for such Distribution Date shall be distributed in the
following order of priority:
(1) concurrently, an amount up to the Senior Principal
Distribution Amount for such Distribution Date, to the Class A
Certificates, pro rata, based upon the amount that the
Certificate Principal Balance for such Class bears to the
aggregate Certificate Principal Balance for the Class A
Certificates (both determined on the close of business on the
Business Day immediately preceding such Distribution Date), in
reduction of their Certificate Principal Balances until reduced
to zero;
(2) an amount up to the Class B-1 Certificate Principal
Distribution Amount, to the Class B-1 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
(3) an amount up to the Class B-2 Certificate Principal
Distribution Amount, to the Class B-2 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
(4) an amount up to the Class B-3 Certificate Principal
Distribution Amount, to the Class B-3 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
(5) an amount up to the Class B-4 Certificate Principal
Distribution Amount, to the Class B-4 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
(6) an amount up to the Class B-5 Certificate Principal
Distribution Amount, to the Class B-5 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
(7) an amount up to the Class B-6 Certificate Principal
Distribution Amount, to the Class B-6 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
(8) an amount up to the Class B-7 Certificate Principal
Distribution Amount, to the Class B-7 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
(9) an amount up to the Class B-8 Certificate Principal
Distribution Amount, to the Class B-8 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
(10) an amount up to the Class B-9 Certificate Principal
Distribution Amount, to the Class B-9 Certificates, in reduction
of its Certificate Principal Balance, until reduced to zero;
113
(11) any remaining amount, for distribution as Excess Cash
Flow pursuant to clause (iii) of this Section 8.05(a).
(iii) Excess Cash Flow, if any, for such Distribution Date
shall be distributed in the following order of priority:
(A) to distribute an amount up to the Overcollateralization
Deficiency Amount for such Distribution Date as principal, to be
distributed pursuant to clause (ii) of this Section 8.05(a);
(B) concurrently, to the Class A Certificates, pro rata, based
upon the amount that the Accrued Certificate Interest for such Class
bears to the aggregate Accrued Certificate Interest for all Class A
Certificates for such Distribution Date, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Class for such Distribution Date) and any Additional
Negative Amortization Carryover Amounts for such Class; provided,
however, that if the Cap Agreement is in effect on such Distribution
Date, any amount allocated to pay any Additional Negative Amortization
Carryover Amount for the Class A-2A Certificates shall be paid to the
Supplemental Interest Trust for the benefit of the Cap Provider on
such Distribution Date;
(C) concurrently, to the Class A Certificates, pro rata, to
reduce any Applied Realized Loss Amount allocated to such Class on
such Distribution Date;
(D) to the Class B-1 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
(E) to the Class B-1 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
(F) to the Class B-2 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
(G) to the Class B-2 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
(H) to the Class B-3 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
114
(I) to the Class B-3 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
(J) to the Class B-4 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
(K) to the Class B-4 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
(L) to the Class B-5 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
(M) to the Class B-5 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
(N) to the Class B-6 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
(O) to the Class B-6 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
(P) to the Class B-7 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
(Q) to the Class B-7 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
(R) to the Class B-8 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
(S) to the Class B-8 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
115
(T) to the Class B-9 Certificates, to pay, pro rata, any Unpaid
Interest Distribution Amounts for such Class for such Distribution
Date (but only to the extent of any unpaid Accrued Certificate
Interest for such Distribution Date for such Class) and any Additional
Negative Amortization Carryover Amounts for such Class;
(U) to the Class B-9 Certificates, to reduce any Applied Realized
Loss Amount allocated to such Class on such Distribution Date;
(V) from amounts otherwise payable to the Class C Certificates,
to the Reserve Account, an amount up to the aggregate unpaid Net WAC
Cap Carryover Amounts for each Class of Certificates other than, on
any Distribution Date on which the Cap Agreement is in effect, the Net
WAC Cap Carryover Amount for the Class A-2A Certificates, which amount
shall be paid to the Cap Provider on such Distribution Date;
(W) from amounts otherwise payable to the Class C Certificates,
to the Cap Account, an amount up to the Cap Termination Payment owing
to the Cap Provider;
(X) to the Class C Certificates, the Class C Distributable
Amount; and
(Y) to the Class R and RX Certificates (from their respective
REMICs), any remaining amount.
(b) Amounts distributed to the Residual Certificates pursuant to Section
8.05(a)(iii)(Y) on any Distribution Date shall be allocated among the Residual
Interests represented thereby such that each such interest is allocated the
excess of funds available to the related REMIC over required distributions to
the REMIC Regular Interests and/or Regular Certificates of such REMIC on such
Distribution Date.
(c) Amounts in the Reserve Account will be applied on each Distribution
Date as set forth in Section 8.02. Amounts in the Cap Account will be applied on
each Distribution Date as set forth in Section 8.04.
(d) Notwithstanding any other provision of this Agreement, the Securities
Administrator, as applicable, shall comply with all federal withholding
requirements with respect to payments to Certificateholders of interest or
original issue discount that the Securities Administrator reasonably believes
are applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding. In the event the Securities Administrator
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Securities Administrator shall indicate the amount withheld to
such Certificateholder.
SECTION 8.06 Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Securities Administrator
shall determine the total amount of Realized Losses with respect to the
Prepayment Period related to
116
the Distribution Date based upon information from the Servicer. The Applied
Realized Loss Amount for any Distribution Date shall be allocated in reduction
of the Certificate Principal Balances of the Class B-9 Certificates, Class B-8
Certificates, Class B-7 Certificates, Class B-6 Certificates, Class B-5
Certificates, Class B-4 Certificates, Class B-3 Certificates, Class B-2
Certificates, Class B-1 Certificates, Class A-3 Certificates, Class A-2
Certificates and Class A-1 Certificates, in that order, and until the respective
Certificate Principal Balance of each such Class has been reduced to zero. Any
Applied Realized Loss Amount allocated to the Class A-2 Certificates shall be
allocated, pro rata, based upon the Certificate Principal Balance of the related
Class to the aggregate Certificate Principal Balances of the Class A-2
Certificates.
(b) Any Applied Realized Loss Amount allocated to a Class of Certificates
or any reduction in the Certificate Principal Balance of a Class of Certificates
pursuant to Section 8.06(a) shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Principal Balance.
(c) Any allocation of any Applied Realized Loss Amount to a Certificate or
any reduction in the Certificate Principal Balance of a Certificate pursuant to
Section 8.06(b) shall be accomplished by reducing the Certificate Principal
Balance thereof immediately following the distributions made on the related
Distribution Date in accordance with the definition of Certificate Principal
Balance.
(d) Any Subsequent Recoveries shall be included as part of the Principal
Distribution Amount on the succeeding Distribution Date. On each Distribution
Date, the Unpaid Realized Loss Amounts on the Classes of Certificates by the
amount of Subsequent Recoveries for such Distribution Date, such reductions to
be allocated to each Class of Certificates having an Unpaid Realized Loss Amount
in reverse order of the allocation of Applied Realized Loss Amounts set forth in
Section 8.06(a) until the Unpaid Realized Loss Amount for such Class is reduced
to zero, and the Certificate Principal Balances of such Class or Classes shall
be increased by the same amount.
SECTION 8.07 REMIC Distributions.
(a) On each Distribution Date, the following amounts, in the following
order of priority, shall be distributed by REMIC I to REMIC II on account of the
Uncertificated REMIC I Regular Interests and distributed to the holders of the
Class R Certificates (in respect of the Class R-I Interest), as the case may be:
(i) first, to the extent of the Available Funds to each Uncertificated
REMIC I Regular Interest, pro rata, in an amount equal to (A) the Uncertificated
Interest for such Distribution Date (but only to the extent of the Interest
Distribution Amount), plus (B) any amounts in respect thereof remaining unpaid
from previous Distribution Dates to the extent that equivalent amounts are
distributed to the REMIC II Regular Interests. Amounts payable as Uncertificated
Interest in respect of Uncertificated REMIC I Regular Interest LTZZ shall be
reduced and deferred when the REMIC I Overcollateralized Amount is less than the
REMIC I Overcollateralization Target Amount, by the lesser of (x) the amount of
such difference and (y) the Maximum LTZZ Uncertificated Interest Deferral
Amount, and such amount shall be payable to each Uncertificated REMIC I Regular
Interest (other than Uncertificated REMIC I Regular
117
Interest LTAA and Uncertificated REMIC I Regular Interest LTZZ) in the same
proportion as the Overcollateralization Deficiency Amount is allocated to the
Corresponding Certificates and the Uncertificated Principal Balance of
Uncertificated REMIC I Regular Interest LTZZ shall be increased by such amount;
(ii) to the Uncertificated REMIC I Regular Interests, in an amount
equal to the remainder of the Available Funds for such Distribution Date after
the distributions made pursuant to clause (i) above, allocated as follows:
(1) 98.00% of such remainder (other than amounts payable
under clause (3) below), to Uncertificated REMIC I Regular Interest
LTAA until the Uncertificated Principal Balance of such Uncertificated
REMIC I Regular Interest is reduced to zero;
(2) 2.00% of such remainder (other than amounts payable
under clause (3) below) first, to each Uncertificated REMIC I Regular
Interest (other than Uncertificated REMIC I Regular Interest LTAA and
Uncertificated REMIC I Regular Interest LTZZ), 1.00% and in the same
proportion as principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Principal Balance of such
Uncertificated REMIC I Regular Interests are reduced to zero and
second, to Uncertificated REMIC I Regular Interest LTZZ, until the
Uncertificated Principal Balance of such Uncertificated REMIC I
Regular Interest is reduced to zero; and
(3) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-I Interest);
(iii) provided, however, that (i) 98.00% and (ii) 2.00% of any
principal payments that are attributable to an Aggregate Overcollateralization
Release Amount shall be allocated to (i) Uncertificated REMIC I Regular Interest
LTAA and (ii) Uncertificated REMIC I Regular Interest LTZZ, respectively; and
(iv) Notwithstanding anything to the contrary above, on each
Distribution Date after making distributions of the Available Funds, including
any Excess Cashflow distributed pursuant to Section 8.05(iii) distributions
shall be deemed allocated such that:
(A) 98.00% of any such amounts deemed allocated in respect of the
aggregated Uncertificated Principal Balance of the Uncertificated
REMIC I Regular Interests shall be deemed allocated to REMIC I regular
Interest LTAA;
(B) 1.00% of any such amounts deemed allocated in respect of the
aggregated Uncertificated Principal Balance of the Uncertificated
REMIC I Regular Interests shall be deemed allocated to the REMIC I
Regular Interest related to its Corresponding REMIC II Regular
Interest;
(C) 1.00% of any such amounts deemed allocated in respect of the
aggregated Uncertificated Principal Balance of the Uncertificated
REMIC I
118
Regular Interests shall be deemed to be allocated to REMIC I Regular
Interest LTZZ;
(D) the Uncertificated Principal Balance of REMIC II Regular
Interest LTZZ shall be increased by such amount pursuant to (iv)(B)
above;
(E) as of any date, the aggregate Uncertificated Principal
Balance of the Uncertificated REMIC I Regular Interests shall equal
the aggregate Certificate Principal Balance of the Certificates; and
(F) the aggregate amount deemed distributed in respect of
Uncertificated Interest with respect to the REMIC I Regular Interests
shall equal and shall in no event exceed the aggregate amount of
interest actually distributed to the REMIC II Regular Interests and
any accrued and unpaid interest with respect to Uncertificated
Interest shall be carried over and paid to the extent paid in the
aggregate on the REMIC II Regular Interests on following Distribution
Dates.
(b) Amounts distributed to the Class A, Class B and Class C Certificates
shall be deemed distributed to the Corresponding Class of Uncertificated REMIC
II Regular Interests and then to the respective Corresponding Class of
Certificates.
(c) The following losses shall be deemed to be allocated as follows: all
Realized Losses on the Mortgage Loans shall be deemed to be allocated on each
Distribution Date to the following Uncertificated REMIC I Regular Interests in
the specified percentages, as follows: first, to Uncertificated Interest payable
to (i) Uncertificated REMIC I Regular Interest LTAA and (ii) Uncertificated
REMIC I Regular Interest LTZZ up to an aggregate amount equal to the REMIC I
Interest Loss Allocation Amount, 98.00% and 2.00%, respectively; second, to the
Uncertificated Principal Balances of Uncertificated REMIC I Regular Interest
LTAA and Uncertificated REMIC I Regular Interest LTZZ up to an aggregate amount
equal to the REMIC I Principal Loss Allocation Amount, 98.00% and 2.00%,
respectively; third, to the Uncertificated Principal Balances of each such
Uncertificated REMIC I Regular Interest LTAA, each corresponding REMIC I Marker
Classes (in reverse order) and Uncertificated REMIC I Regular Interest LTZZ,
98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Principal
Balance of Uncertificated REMIC I Regular Interest has been reduced to zero;
(d) Notwithstanding anything to the contrary contained herein, the above
distributions in this Section 8.07 (other than with respect to the Certificates
that are deemed distributions, and distributions of funds to the Certificates)
shall be made only in accordance with Sections 8.05 and 8.06 hereof.
(e) It is the intention of all of the parties hereto that the Class C
Certificates receive all principal and interest and Prepayment Premiums received
by the Trust on the Mortgage Loans that is not otherwise distributable to any
other Class of Regular Certificates or REMIC Regular Interests other than as
provided for in Section 8.05(iii). If the Securities Administrator determines
that the Residual Certificates are entitled to any distributions, the Securities
Administrator, prior to any such distribution to any Residual Certificate, shall
notify the
119
Depositor of such impending distribution. Upon such notification, the Depositor
will request an amendment to the Agreement to revise such mistake in the
distribution provisions. The Residual Certificate Holders, by their acceptance
of their Certificates, and the Master Servicer hereby agree and no further
consent shall be necessary, notwithstanding anything to the contrary in this
Agreement.
SECTION 8.08 Indemnification.
(a) The Depositor, the Master Servicer, the Securities Administrator, the
Custodian and the Trustee, and any director, officer, employee or agent of the
Depositor, the Master Servicer, the Securities Administrator or the Trustee,
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement, the Cap Agreement, Custodial Agreement, any
Servicing Agreement or the Certificates or any other unanticipated or
extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence (or gross negligence in
the case of the Master Servicer, Securities Administrator, Custodian and
Depositor) in the performance of such Person's duties hereunder or by reason of
reckless disregard of such Person's obligations and duties hereunder. None of
the Depositor, the Master Servicer, the Custodian or the Securities
Administrator shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its respective duties hereunder and
which in its opinion may involve it in any expense or liability; provided,
however, that each of the Depositor, the Master Servicer, the Custodian and the
Securities Administrator may in its respective sole discretion undertake any
such claim that it may deem necessary or desirable in respect of this Agreement
(or Custodial Agreement) and the rights and duties of the parties hereto and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer, the Custodian and the Securities Administrator
shall be entitled to be reimbursed therefor out of the Distribution Account.
(b) The Securities Administrator and its officers, directors, employees and
agents will be entitled to recover from the Trust Fund from amounts held in the
Distribution Account, and shall be indemnified from the Trust Fund for, all
reasonable out-of-pocket expenses, disbursements, and advances, including costs
of collection, upon any breach of this Agreement or any Event of Default or
Termination Event under the Cap Agreement, or any loss, liability, expense,
claim or legal action (including any pending or threatened claim or legal
action) incurred or made by any of them in the performance of their duties under
this Agreement (including the reasonable compensation, expenses and
disbursements of its counsel), except any such expense, loss, liability,
disbursement or advance as may arise from its gross negligence or intentional
misconduct. If funds in the Distribution Account are insufficient therefor, the
Securities Administrator shall recover such expenses from future funds deposited
in the Distribution Account. Such compensation and reimbursement obligation
shall not be limited by any provision of law in regard to the compensation of a
Securities Administrator of an express trust. Such obligations shall survive the
termination of this Agreement and the removal or resignation of the Securities
Administrator.
120
ARTICLE IX
THE CERTIFICATES
SECTION 9.01 The Certificates.
(a) The Certificates shall be substantially in the forms attached hereto as
Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit A-3 and Exhibit A-4. The Certificates shall be
issuable in registered form, in the initial Certificate Principal Balances or
Notional Amounts, as applicable, minimum denominations and aggregate
denominations per Class and with the Pass-Through Rates set forth in the
Preliminary Statement.
(b) Subject to Section 11.02, on each Distribution Date the Securities
Administrator shall make distributions to each Certificateholder of record on
the preceding Record Date either (i) by wire transfer in immediately available
funds to the account of such holder at a bank or other entity having appropriate
facilities therefor, if such Holder has so notified the Securities Administrator
at least five Business Days prior to the related Record Date or (ii) by check
mailed by first class mail to such Certificateholder at the address of such
Holder appearing in the Certificate Register.
(c) The Certificates shall be executed by manual or facsimile signature on
behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the
Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the countersignature and delivery of such Certificates or
did not hold such offices at the date of such Certificate. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless countersigned by the Securities Administrator by manual signature, and
such countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Securities Administrator shall authenticate the
Certificates to be issued at the written direction of the Depositor or any
Affiliate thereof.
SECTION 9.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Securities Administrator, as Certificate Registrar, shall maintain,
or cause to be maintained in accordance with the provisions of Section 9.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage
121
Interest upon surrender of the Certificates to be exchanged at the office or
agency of the Securities Administrator. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange shall
be canceled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator's customary procedures.
(b) No transfer of a Certificate other than an Offered Certificate shall be
made unless such transfer is (a) made between affiliates of the Depositor
(inclusive of the Depositor), (b) by the Depositor to a trust for which it is
the sponsor or (c) made pursuant to an effective registration statement under
the Securities Act and any applicable state securities laws or is exempt from
the registration requirements under such Act and such state securities laws. In
the event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect the transfer of a
Private Certificate shall (i) certify to the Securities Administrator in writing
the facts surrounding the transfer in substantially the forms set forth in
Exhibit E (the "Transferor Certificate") and (ii) deliver to the Securities
Administrator at the expense of the transferor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act. Such
Certificateholder's prospective transferee shall execute and deliver to the
Securities Administrator a letter substantially in the form of either Exhibit
F-1 (the "Investment Letter") or Exhibit F-2 (the "Rule 144A Letter"). The
Depositor shall provide to any Holder of a Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. The
Securities Administrator shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including providing
to the Depositor such information regarding the Certificates, the Mortgage Loans
and other matters regarding the Trust Fund as the Depositor shall reasonably
request in the Securities Administrator's possession to meet its obligation
under the preceding sentence. Each Holder of a Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor and the Securities Administrator against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
(c) No transfer of an ERISA Restricted Certificate shall be made unless the
Securities Administrator shall have received a Benefit Plan Affidavit
substantially in the form of Exhibit G
122
including (i) a representation from the transferee of such Certificate to the
effect that such transferee is not an employee benefit plan or arrangement,
including a collective investment fund (or insurance company general account) or
an individual retirement account that is subject to title I of ERISA, Section
4975 of the Code (each, a "Plan") nor any person acting directly or indirectly
on behalf of a Plan or using the assets of a Plan, (ii) in the case of an ERISA
Restricted Certificate (other than a Residual Certificate, a Class C Certificate
or a Class P Certificate) that has been the subject of an underwriting that
meets the requirements of V(h) of PTCE 95-60 (defined below), if the purchaser
is an insurance company, a representation that the purchaser is an insurance
company which is purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60, or (iii) in the case of any such ERISA Restricted Certificate
(other than a Residual Certificate) presented for registration in the name of a
Plan or a trustee of any such plan or any other person acting for or on behalf
of any such plan or arrangement, or using such plan's or arrangement's assets,
an Opinion of Counsel satisfactory to the Securities Administrator, which
Opinion of Counsel shall not be an expense of either the Securities
Administrator or the Trust Fund, addressed to the Securities Administrator to
the effect that the purchase and holding of such ERISA Restricted Certificate
will not result in any non-exempt prohibited transaction under Title I of ERISA
or Section 4975 of the Code or, in the case of a government plan, church plan or
other employee benefit plan or retirement arrangement that is subject to any
federal, state or local law that is substantially similar to the foregoing
provisions of ERISA or the Code ("Similar Law") any violation of Similar Law and
will not subject the Depositor, the Trustee, the Securities Administrator, the
Master Servicer or any Servicer to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in this Agreement. For purposes of clauses (i) and (ii) of
this Section 9.02(c), with respect to an ERISA Restricted Certificate that is a
Book-Entry Certificate, in the event the Benefit Plan Affidavit is not so
furnished, the representations referred to in such clauses (i) or (ii) shall be
deemed to have been made to the Securities Administrator by the transferee's
(including an initial acquirer's) acceptance of the ERISA Restricted
Certificates. Neither a Benefit Plan Affidavit nor an Opinion of Counsel shall
be required in connection with the initial transfer of any Certificate by the
Depositor to an affiliate of the Depositor, and the Securities Administrator
shall be entitled to conclusively rely upon a representation (which, upon the
request of the Trustee, shall be a written representation) from the Depositor of
the status of such transferee as an affiliate of the Depositor. Notwithstanding
anything else to the contrary herein, any purported transfer of an ERISA
Restricted Certificate to or on behalf of a plan or any government plan, church
plan or other employee benefit plan or retirement arrangement that is subject to
Similar Law or any Person acting on behalf of such plan or using assets of such
plan without compliance with the conditions described above shall be void and of
no effect.
To the extent permitted under applicable law (including ERISA), the
Securities Administrator shall be under no liability to any Person for any
registration of transfer of any ERISA Restricted Certificate that is in fact not
permitted by this Section 9.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Securities Administrator in accordance with the foregoing
requirements.
123
(d) The preparation and delivery of all Certificates and opinions referred
to in this Section 9.02 in connection with transfer shall be at the expense of
the parties to such transfers, and not an expense of the Securities
Administrator or the Trust Fund.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times:
(i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository;
(ii) the Depository shall maintain book-entry records with respect to
the Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates;
(iii) ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(v) the Securities Administrator shall deal with the Depository,
Depository Participants and indirect participating firms as representatives of
the Certificate Owners of the Book-Entry Certificates for purposes of exercising
the rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they are
made with respect to different Certificate Owners; and
(vi) the Securities Administrator may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures. Neither the Trustee, the Securities
Administrator nor the Master Servicer shall be required to monitor, determine or
inquire as to compliance with the transfer restrictions with respect to any
Book-Entry Certificates. Neither the Trustee, the Master Servicer nor the
Securities Administrator shall have any liability for transfer of any such
Book-Entry Certificates in or through book-entry facilities of any Depository or
between or among Depository Participants or Certificate Owners made in violation
of the transfer restrictions set forth herein.
If (i) (A) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (B) the Securities
Administrator or the Depositor is unable to locate a qualified successor or (ii)
the Depositor at its option advises the Securities Administrator in writing that
it elects to terminate the book-entry system, or at the direction of Certificate
Owners representing
124
at least 51% of the Certificate Principal Balance advises the Securities
Administrator and the Depository through the Depository Participants in writing
that the continuation of a book-entry system through the Depository is no longer
in the best interests of the Certificate Owners, the Securities Administrator
shall notify all Certificate Owners, through the Depository, of the occurrence
of any such event and of the availability of definitive, fully-registered
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Securities Administrator of the related Class of Certificates
by the Depository, accompanied by the instructions from the Depository for
registration, the Securities Administrator shall issue the Definitive
Certificates. Neither the Depositor nor the Securities Administrator shall be
liable for any delay in delivery of such instruction and each may conclusively
rely on, and shall be protected in relying on, such instructions. The Depositor
shall provide the Securities Administrator with an adequate inventory of
Certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Securities Administrator, to the extent
applicable with respect to such Definitive Certificates and the Securities
Administrator shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Securities Administrator shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to this Section 9.02(f). Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Securities Administrator with an effective Internal Revenue Service Form W-8ECI
or successor form at the time and in the manner required by the Code (any such
person who is not covered by clause (A) or (B) above is referred to herein as a
"Non-permitted Foreign Holder").
No Person shall acquire an Ownership Interest in a Residual Certificate
unless such Ownership Interest is a pro rata undivided interest. Prior to and as
a condition of the registration of any transfer, sale or other disposition of a
Residual Certificate, the proposed transferee shall deliver to the Securities
Administrator an affidavit in substantially the form attached hereto as Exhibit
H and the proposed transferor shall deliver to the Securities Administrator a
certificate substantially in the form attached hereto as Exhibit E.
Notwithstanding the delivery of an affidavit substantially in the form of
Exhibit H by a proposed transferee, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in a Residual
Certificate to such proposed transferee shall be effected. In addition, the
Securities Administrator may (but shall have no obligation to) require, prior to
and as a condition of any such transfer, the delivery by the proposed transferee
of an Opinion of Counsel, addressed to the Securities Administrator, that such
proposed transferee or, if the proposed transferee is an agent or nominee, the
proposed beneficial owner, is a Permitted Transferee. Notwithstanding the
registration in the Certificate
125
Register of any transfer, sale, or other disposition of a Residual Certificate
to a Disqualified Organization, an agent or nominee thereof, or Non-permitted
Foreign Holder, such registration shall be deemed to be of no legal force or
effect whatsoever and such Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder shall not be deemed to be a Certificateholder
for any purpose hereunder, including, but not limited to, the receipt of
distributions on such Residual Certificate. Neither the Depositor nor the
Securities Administrator shall be under any liability to any Person for any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or for
the Securities Administrator making any payments due on such Residual
Certificate to the Holder thereof or for taking any other action with respect to
such Holder under the provisions of the Agreement, so long as the transfer was
effected in accordance with this Section 9.02(f), unless the Securities
Administrator shall have actual knowledge at the time of such transfer or the
time of such payment or other action that the transferee is a Disqualified
Organization, or an agent or nominee thereof, or Non-permitted Foreign Holder.
The Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder at the time it became a Holder or any
subsequent time it became a Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder, all payments made on such Residual Certificate
at and after either such times and all costs and expenses, including but not
limited to attorneys' fees, incurred in connection therewith. Any payment (not
including any such costs and expenses) so recovered by the Securities
Administrator shall be paid and delivered to the last preceding Holder of such
Residual Certificate.
If any purported transferee shall become a registered Holder of a Residual
Certificate in violation of the provisions of this Section 9.02(f), then upon
receipt of written notice to the Securities Administrator that the registration
of transfer of such Residual Certificate was not in fact permitted by this
Section 9.02(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Depositor and the Securities
Administrator shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this Section
9.02(f), or for the Securities Administrator making any payment due on such
Certificate to the registered Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered upon receipt of the affidavit described in the preceding
paragraph of this Section 9.02(f).
(g) Each Holder of an ERISA Restricted Certificate or Residual Certificate,
or an interest therein, by such Holder's acceptance thereof, shall be deemed for
all purposes to have consented to the provisions of this section.
SECTION 9.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Securities
Administrator, or the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b) there
is delivered to the Depositor and the Securities Administrator such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
countersign and deliver, in
126
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like Class, tenor and Percentage Interest. In
connection with the issuance of any new Certificate under this Section 9.03, the
Securities Administrator may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Securities
Administrator) connected therewith. Any replacement Certificate issued pursuant
to this Section 9.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 9.04 Persons Deemed Owners.
The Securities Administrator and the Trustee and any agent of the
Securities Administrator and any agent of the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Securities Administrator nor any
agent of the Securities Administrator shall be affected by any notice to the
contrary.
SECTION 9.05 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in writing
from the Securities Administrator, (b) state that such Certificateholders desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor shall request such information in writing from the Securities
Administrator, then the Securities Administrator shall, within ten Business Days
after the receipt of such request, provide the Depositor or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Securities Administrator, if
any. The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Securities Administrator shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 9.06 Maintenance of Office or Agency.
The Securities Administrator shall maintain or cause to be maintained at
its expense an office or offices or agency or agencies where Certificates may be
surrendered for registration of transfer or exchange. The Securities
Administrator initially designates its office at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for such purposes. The Securities
Administrator shall give prompt written notice to the Certificateholders of any
change in such location of any such office or agency.
SECTION 9.07 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by
127
virtue of its status as a Certificateholder, shall have any right to vote or in
any manner otherwise control the Securities Administrator, the Master Servicer
or any Servicer or the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of a Servicer
Event of Default or a Master Servicer Event of Default and of the continuance
thereof, and unless also the Holders of Certificates evidencing not less than
51% of the Voting Interests of Certificates of each Class affected thereby shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee indemnity reasonably satisfactory to it as it may require against the
cost, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request has been
given such Trustee during such 60-day period by such Certificateholders; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder, and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 9.07, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 9.08 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders or
Certificate Owners, if the Holder is a Depository, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where expressly
required herein, to the Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agents shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee, if made in the manner provided in this Section 9.08. The Trustee shall
promptly notify the others of receipt of any such instrument by it, and shall
promptly forward a copy of such instrument to the others.
128
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments or deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Whenever such execution is
by an officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Securities Administrator) shall be proved
by the Certificate Register, and neither the Trustee nor the Depositor shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
ARTICLE X
THE DEPOSITOR
SECTION 10.01 Liabilities of the Depositor.
The Depositor shall be liable in accordance herewith only to the extent of
the obligations specifically imposed upon and undertaken by the Depositor
herein.
SECTION 10.02 Merger or Consolidation of the Depositor.
(a) The Depositor shall keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof and shall obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
(b) Any Person into which the Depositor may be merged or consolidated, or
any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any person succeeding to the business of the Depositor,
shall be the successor of the Depositor hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 10.03 Limitation on Liability of the Depositor and Others.
None of the Depositor or any of the directors, officers, employees or
agents of the Depositor shall be under any liability to the Certificateholders
for any action taken or for
129
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of its obligations and duties hereunder. The
Depositor and any director, officer, employee or agent of the Depositor may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor
and any director, officer, employee or agent of the Depositor shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder. The
Depositor shall not be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its duties hereunder and which in its
opinion may involve it in any expense or liability; provided, however, that the
Depositor may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and the Depositor shall be entitled to be reimbursed therefor out of
the Distribution Account on any Distribution Date.
ARTICLE XI
TERMINATION
SECTION 11.01 Termination upon Liquidation or Purchase of all Mortgage
Loans.
Subject to the provisions of Section 11.03, the obligations and
responsibilities of the Depositor, the Seller, the Servicers, the Master
Servicer, the Securities Administrator and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of:
(a) on any Distribution Date on which the sum of the aggregate Stated
Principal Balance of the Mortgage Loans on such Distribution Date is 10% or less
than the Cut-off Date Balance, the purchase by a Majority In Interest of the
Class C Certificates of all Mortgage Loans and REO Properties remaining in the
Trust Fund (any such event, a "Clean-up Call") at a price (the "Termination
Price") equal to the sum of (i) 100% of the Stated Principal Balance of each
Mortgage Loan as of the date of the purchase thereof by such Majority In
Interest, (ii) with respect to each REO Property, the lesser of (x) the fair
market value of such REO Property as determined in good faith by the Servicer of
such REO Property and (y) the Stated Principal Balance of the related Mortgage
Loan, (iii) one month's accrued interest on the sum of (i) and (ii), at the
applicable Adjusted Net Mortgage Rate, (iv) the amount of all unreimbursed
Advances and any unpaid Servicing Fees and Master Servicing Fees allocable to
such Mortgage Loans and REO Properties, and (iv) all amounts, if any, then due
and owing to the Master Servicer, each
130
Servicer, the Trustee, the Securities Administrator and the Custodian under this
Agreement or in respect of the Mortgage Loans, and
(b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement.
In no event shall the trusts created hereby continue beyond the earlier of
(i) the expiration of 21 years from the death of the survivor of the descendants
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of
St. James's, living on the date hereof and (ii) the Final Scheduled Distribution
Date.
SECTION 11.02 Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that there are
no outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Distribution Account, the Master Servicer shall
notify the Securities Administrator, which shall promptly send a final
distribution notice to each Certificateholder.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the
Securities Administrator by letter to Certificateholders mailed not earlier than
the 15th day of the month immediately preceding the month of such final
distribution and no later than the tenth day of the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates shall be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Securities Administrator shall give such notice to each Rating
Agency at the time such notice is given to Certificateholders. The Majority In
Interest of the Class C Certificates that are exercising the right to purchase
the Mortgage Loans under Section 11.01 shall, no later than the Business Day
prior to the Distribution Date on which the final distribution is to be made,
remit the Termination Price to the Securities Administrator for deposit in the
Distribution Account.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class, in each case on the final Distribution Date and in the order set forth in
Section 8.05, in proportion to their respective Percentage Interests, with
respect to Certificateholders of the same Class, an amount, from Available
Funds, equal to the Certificate Principal Balance thereof plus accrued interest
thereon.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been
131
surrendered for cancellation, upon written request of the Holders of the
Residual Certificates to the Securities Administrator at the applicable
Corporate Trust Office, the Holders of the Residual Certificates shall be
entitled to all unclaimed funds and other assets of the Trust Fund which remain
subject hereto.
SECTION 11.03 Additional Termination Requirements.
(a) If the Clean-up Call is exercised as provided in Section 11.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Securities Administrator has been supplied with an
Opinion of Counsel, at the expense of the Sponsor, to the effect that the
failure to comply with the requirements of this Section 11.03 shall not (i)
result in the imposition of taxes on "prohibited transactions" on any REMIC as
defined in section 860F of the Code, or (ii) cause any REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date set forth in
the notice given by the Majority In Interest of the Class C Certificates that
are exercising the right to purchase the Mortgage Loans under Section 11.01, at
the expense of such Majority In Interest, the Securities Administrator shall
adopt a plan of complete liquidation within the meaning of section 860F(a)(4) of
the Code which meets the requirements of a qualified liquidation;
(ii) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Securities Administrator shall sell all of the assets
of the Trust Fund to the Majority In Interest of the Class C Certificates that
are exercising the right to purchase the Mortgage Loans under Section 11.01 for
cash in accordance with Section 11.01;
(iii) On the date specified for final payment of the Certificates, the
Securities Administrator shall cause to be made final distributions of principal
and interest on the Certificates in accordance with Section 11.02 and, after
payment of, or provision for any outstanding expenses, distribute or credit, or
cause to be distributed or credited, to the Holders of the Residual Certificates
all cash on hand after such final payment (other than cash retained to meet
claims), and the Trust Fund (and each REMIC) shall terminate at that time; and
(iv) In no event may the final payment on the Certificates or the
final distribution or credit to the Holders of the Residual Certificates be made
after the 89th day from the date on which the plan of complete liquidation is
adopted.
(b) The Securities Administrator as agent for any REMIC hereby agrees to
adopt and sign such a plan of complete liquidation upon the written request of
the Majority In Interest of the Class C Certificates that are exercising the
right to purchase the Mortgage Loans under Section 11.01 and to take such other
action in connection therewith as may be reasonably requested by such Majority
In Interest.
132
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Securities Administrator to adopt and sign a plan of complete
liquidation.
ARTICLE XII
REMIC ADMINISTRATION
SECTION 12.01 REMIC Administration.
(a) The REMIC elections as set forth in the Preliminary Statement shall be
made on Forms 1066 or other appropriate federal tax or information return
prepared by the Securities Administrator and signed by the Trustee for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement. Following the Closing
Date, the Securities Administrator shall apply to the Internal Revenue Service
for an employer identification number for each REMIC created hereunder by means
of a Form SS-4 or other acceptable method and shall file a Form 8811 with the
Internal Revenue Service. The Securities Administrator shall also apply for an
employer identification number by means of a Form SS-4 for the Issuing Entity
separate and apart from any Trust REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the
Final Scheduled Distribution Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax-related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer).
(d) The Securities Administrator shall prepare and file and the Trustee
shall sign, each REMIC's federal and state tax and information returns as such
REMIC's direct representative. The expenses of preparing and filing such returns
shall be borne by the Securities Administrator.
(e) The Securities Administrator or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Securities Administrator shall provide,
upon receipt of additional reasonable compensation, (i) to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization pursuant to Treasury Regulation
133
1.860E-2(a)(5) and any person designated in section 860E(e)(3) of the Code and
(ii) to the Securities Administrator such information as is necessary for the
Securities Administrator to provide to the Certificateholders such information
or reports as are required by the Code or REMIC Provisions.
(f) To the extent within their control, the Securities Administrator and
the Holders of Certificates shall take any action or cause any REMIC to take any
action reasonably necessary to maintain the status of any REMIC as a REMIC under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status. None of the Securities Administrator or the Holder of any
Residual Certificate shall knowingly take any action, cause any REMIC to take
any action or fail to take (or fail to cause to be taken) any action that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of any REMIC as a REMIC or (ii) result in the imposition of
a tax upon any REMIC (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth on Section 860G(d) of the Code) (either such event, an
"Adverse REMIC Event") unless the Securities Administrator shall have received
an Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such status or
result in the imposition of such a tax. In addition, prior to taking any action
with respect to any REMIC or the assets therein, or causing any REMIC to take
any action, which is not expressly permitted under the terms of this Agreement,
any Holder of a Residual Certificate will consult with the Securities
Administrator or their respective designees, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
REMIC, and no such Person shall take any such action or cause any REMIC to take
any such action as to which the Securities Administrator has advised it in
writing that an Adverse REMIC Event could occur; provided, however, that if no
Adverse REMIC Event would occur but such action could result in the imposition
of additional taxes on the Residual Certificateholders, no such Person shall
take any such action, or cause any REMIC to take any such action without the
written consent of the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental authorities.
To the extent that such taxes are not paid by a Residual Certificateholder, the
Securities Administrator shall pay any remaining REMIC taxes out of current or
future amounts otherwise distributable to the Holder of the Residual Certificate
in any such REMIC or, if no such amounts are available, out of other amounts
held in the Distribution Account, and shall reduce amounts otherwise payable to
holders of regular interests in any such REMIC, as the case may be.
(h) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(j) The Securities Administrator shall not enter into any arrangement by
which any REMIC will receive a fee or other compensation for services.
134
(k) The largest percentage holder of the Class R and Class RX Certificates
shall be the "tax matters person" as defined in the REMIC Provisions (the "Tax
Matters Person") with respect to their respective REMICs. The Securities
Administrator shall act as agent for the Holder of the Class R and Class RX
Certificates in such roles, unless and until another party is so designated by
the Holder of the Class R or the Class RX Certificate.
(l) The Securities Administrator shall treat (i) the rights of the Class A
and Class B Certificates to receive Net WAC Cap Carryover Amounts (other than
amounts paid under the Cap Agreement) as a right in a notional principal
contract written by the Class C Certificateholders in favor of the Holders of
the Class A and Class B Certificates and (ii) the rights of the Class A-2A
Certificates to receive payments in respect of the Cap Agreement as a right in a
notional principal contract in accordance with the respective terms thereof and
shall assign such rights for federal tax return and information reporting a
value of $60,012.96. The Securities Administrator shall account for such as
property held separate and apart from the regular interests it holds in each of
the REMICs created hereunder. The provisions of this paragraph are intended to
satisfy the requirements of Treasury Regulations Section 1.860G-2(i) for the
treatment of property rights coupled with regular interests to be separately
respected and shall be interpreted consistent with such regulation. On each
Distribution Date in the case of (i) above, to the extent the Class A and Class
B Certificates receive interest in excess of their Pass-Through Rate from the
Reserve Account, such interest will be treated as distributed to the Class C
Interest and then to the Class C Certificates, together with any amounts
deposited in the Reserve Account and then paid to the Class A and Class B
Certificates. Any amounts paid pursuant to (ii) above will be paid in accordance
with the provisions of Section 8.04 herein.
SECTION 12.02 Prohibited Transactions and Activities.
None of the Depositor, the Trustee, Master Servicer or the Securities
Administrator shall (a) sell, dispose of, or substitute for any of the Mortgage
Loans, except in a disposition pursuant to (i) the foreclosure of a Mortgage
Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination of each REMIC
pursuant to Article XI, or (iv) a substitution or a repurchase of Mortgage Loans
pursuant to Article II or (b) acquire any assets for any REMIC, or (c) sell or
dispose of any investments in the Distribution Account for gain, or accept any
contributions to any REMIC after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale, disposition,
or substitution) that such disposition, acquisition, substitution, or acceptance
will not (i) affect adversely the status of any such REMIC as a REMIC or of the
interests therein other than the Residual Certificate as the regular interests
therein, (ii) affect the distribution of interest or principal on the
Certificates, (iii) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (iv) cause any such REMIC to be subject to any tax including a tax on
prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
SECTION 12.03 Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status.
In the event that a REMIC fails to qualify as a REMIC, loses its status as
a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to a
violation of this Pooling Agreement or due to the negligent
135
performance by the Securities Administrator, the Trustee or the Master Servicer
of its duties and obligations set forth herein, the Trustee, the Securities
Administrator or the Master Servicer, as applicable, shall indemnify the
Certificateholders of the related Residual Certificate against any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from such
negligence; provided, however, that such party shall not be liable for any such
Losses attributable to the action or another party to this Agreement or the
Holder of the Residual Certificate, nor for any such Losses resulting from
misinformation provided by any of the foregoing parties on which such party has
relied. Notwithstanding the foregoing, however, in no event shall the Trustee,
the Securities Administrator, the Master Servicer or any Servicer have any
liability (a) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement or the related Servicing Agreement and (b) for any
special or consequential damages to Certificateholders of the related Residual
Certificate (in addition to payment of principal and interest on the
Certificates).
ARTICLE XIII
AMENDMENT
SECTION 13.01 Without Consent of the Certificateholders.
(a) This Agreement may be amended from time to time by the Depositor, the
Seller, the Master Servicer, the Securities Administrator, any Servicer and the
Trustee without the consent of any of the Certificateholders but with the
consent of the Cap Provider (to the extent required by the Cap Agreement) (i) to
cure any ambiguity or mistake, (ii) to correct any defective provision herein or
to supplement any provision herein which may be inconsistent with any other
provision herein or (iii) to add to the duties of the Depositor, the Seller, the
Securities Administrator, the Master Servicer, the Servicers or the Trustee, but
only if such duties would not constitute a significant change to the permitted
activities of the Issuing Entity; provided that any such amendment shall not, as
evidenced by an Opinion of Counsel, which Opinion of Counsel shall be expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee, the Master Servicer, the Securities Administrator or the Trust Fund,
adversely affect in any material respect the interests of any Certificateholder;
and provided further, that the amendment shall not be deemed to adversely affect
in any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading, withdrawal or qualification
of the respective ratings then assigned to the Certificate.
(b) The Trustee, the Depositor, the Securities Administrator, the Master
Servicer and the Servicers also may at any time and from time to time amend this
Agreement without the consent of the Certificateholders to modify, eliminate or
add to any of its provisions to such extent as shall be necessary or helpful to
(i) maintain the qualification of any Trust REMIC as a REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on any Trust REMIC
pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements of
the Code; provided that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee, the Master Servicer, the
Securities Administrator or the Trust Fund, to the effect that such action is
136
necessary or helpful to, as applicable, maintain such qualification, avoid or
minimize the risk of the imposition of such a tax or comply with any such
requirements of the Code.
SECTION 13.02 With Consent.
This Agreement also may be amended from time to time by the Depositor, the
Seller, the Securities Administrator, the Master Servicer, the Servicers and the
Trustee with the consent of the Holders of a Majority in Interest of each Class
of Certificates affected thereby and the Cap Provider (to the extent required by
the Cap Agreement) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in clause (i), without the consent of the
Holders of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating 662/3%, or (iii) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Certificates then Outstanding.
SECTION 13.03 Procedure and Notice.
(a) Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
(b) It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(c) Notwithstanding any contrary provision of this Agreement, neither the
Trustee nor the Securities Administrator shall consent to any amendment to this
Agreement unless it shall have first received an Opinion of Counsel, which
opinion shall not be an expense of the Trustee, the Securities Administrator or
the Trust Fund, to the effect that such amendment (i) is permitted by this
Agreement and all conditions required to be satisfied for the amendment to be
effective have been satisfied and (ii) shall not cause (a) any federal tax to be
imposed on the Trust Fund, including without limitation, any federal tax imposed
on "prohibited transactions" under Section 860F(a)(l) of the Code or on
"contributions after the Startup Date" under Section 860G(d)(l) of the Code, or
(b) any REMIC created hereunder to fail to qualify as a REMIC at any time that
any Certificate is Outstanding.
(d) Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, which Opinion shall not be an
expense of the Trustee or the Trust Fund, satisfactory to the Trustee that such
amendment is permitted by this Agreement and that all requirements for amending
this Agreement have been complied with.
137
The Trustee may, but shall not be obligated to, enter into any amendment
which negatively affects the Trustee's own rights, duties or immunities under
this Agreement.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
SECTION 14.02 Entire Agreement.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
SECTION 14.03 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which together shall constitute
one and the same instrument.
SECTION 14.04 Provision of Information.
For so long as any of the Certificates of any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Securities Administrator and the Trustee agree to cooperate with
each other to provide to any Certificateholders and to any prospective purchaser
of Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee or
the Securities Administrator in providing such information shall be reimbursed
by the Depositor.
SECTION 14.05 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
RULES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, WHICH THE
PARTIES HERETO EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING
LAW HEREUNDER) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
138
SECTION 14.06 Notices.
(a) The Securities Administrator shall promptly provide notice to each
Rating Agency of its resignation.
(b) The Securities Administrator shall make available to each Rating Agency
copies of each report to Certificateholders described in Section 4.06.
(c) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered by first class mail, by
courier or by facsimile transmission to the following addresses or such other
address as may hereafter be furnished to the Trustee:
(i) in the case of the Depositor:
▇▇▇▇▇ Asset Securitization, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
One Commerce Square
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of the Trustee, the Corporate Trust Office or such
other address as the Trustee may hereafter furnish to the other
parties hereto;
(ii) in the case of if to the Seller:
Maia Mortgage Finance Statutory Trust
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
One Commerce Square
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) in the case of the Master Servicer or the Securities
Administrator:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager - Luminent 2006-6
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) in the case of the Rating Agencies, addressed to:
(A) Standard & Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Structured Finance Ratings, Mortgage-Backed
Securities
and
(B) ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
SECTION 14.07 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 14.08 No Waivers.
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right,
140
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
SECTION 14.09 Headings Not to Affect Interpretation.
The headings contained in this Agreement are for convenience of reference
only, and they shall not be used in the interpretation hereof.
SECTION 14.10 No Petitions.
The Trustee, the Master Servicer, the Securities Administrator and the
Servicer, by entering into this Agreement, hereby covenant and agree that they
shall not at any time institute against the Depositor, or join in any
institution against the Depositor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to this Agreement or any of the documents entered into
by the Depositor in connection with the transactions contemplated by this
Agreement.
SECTION 14.11 Certificates Fully Paid and Nonassessable.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
SECTION 14.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the Trust Fund created
by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell assets;
or
(iii) engage in any business or activities.
(b) Each of the Trustee, the Securities Administrator and the Depositor
agrees that it shall not file an involuntary bankruptcy petition against the
Trust Fund or initiate any other form of insolvency proceeding until after the
Certificates have been paid in full.
SECTION 14.13 Third Party Beneficiary. Nothing in this Agreement or in the
Certificates, expressed or implied, shall give to any Person, other than the
Certificateholders, the parties hereto and the Cap Provider and their successors
hereunder, any benefit or any legal or equitable right, remedy or claim under
this Agreement.
141
The Cap Provider shall be deemed a third-party beneficiary of this
Agreement to the same extent as if it were a party hereto, and shall have the
right to enforce the provisions of this Agreement directly against the parties
to this Agreement.
[Signature Page Follows]
142
IN WITNESS WHEREOF, the Depositor, the Seller, the Servicer, the Master
Servicer, the Securities Administrator and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
▇▇▇▇▇ ASSET SECURITIZATION, INC., as
Depositor
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
HSBC BANK USA, National Association, as
Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
MAIA MORTGAGE FINANCE STATUTORY
TRUST, as Seller
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee & President
▇▇▇▇▇ FARGO BANK, N.A., as Master
Servicer and as Securities Administrator
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
[POOLING AGREEMENT]
STATE OF )
) ss.:
COUNTY )
)
On the ___ day of September, 2006, before me, a notary public in and for the
State of ___________, personally appeared _________________, known to me who,
being by me duly sworn, did depose and say that s/he is a _______________ of
▇▇▇▇▇ Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that s/he signed her/his name thereto by
order of the Board of Directors of such association.
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling Agreement]
STATE OF )
) ss.:
COUNTY OF )
)
On the ___ day of September, 2006, before me, a notary public in and for the
State of ___________________, personally appeared ______________, known to me
who, being by me duly sworn, did depose and say that s/he is a ___________ of
▇▇▇▇▇ Asset Securitization, Inc. a Delaware corporation, one of the parties that
executed the foregoing instrument; and that s/he signed her/his name thereto by
order of the Board of Directors of such corporation.
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling Agreement]
STATE OF )
) ss.:
COUNTY OF )
)
On the ___ day of September, 2006, before me, a notary public in and for the
State of _____________, personally appeared ______________, known to me who,
being by me duly sworn, did depose and say that s/he is a _____________ of HSBC
Bank USA, National Association, a national banking association, one of the
parties that executed the foregoing instrument; and that s/he signed her/his
name thereto by order of the Board of Directors of such association.
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling Agreement]
STATE OF )
) ss.:
COUNTY OF )
)
On the ___ day of September, 2006, before me, a notary public in and for the
State of ___________, personally appeared ___________________, known to me who,
being by me duly sworn, did depose and say that s/he is a __________________ of
MAIA Mortgage Finance Statutory Trust, a Maryland business trust, one of the
parties that executed the foregoing instrument; and that s/he signed her/his
name thereto by order of the Board of Directors of such trust.
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling Agreement]
SCHEDULE A
Mortgage Loan Schedule
[On file in the Washington DC
offices of Hunton & ▇▇▇▇▇▇▇▇ LLP]
POOLING AGREEMENT
EXHIBITS
TABLE OF CONTENTS
EXHIBITS
Exhibit A-1 - Form of Class A Certificate
Exhibit A-2 - Form of Class B Certificate
Exhibit A-3- Form of Class C Certificate
Exhibit A-4 - Form of Residual Certificate
EXHIBIT A - 1
FORM OF CLASS A CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE SECURITIES
ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [ - ] OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [ - ] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, [ - ], HAS AN INTEREST HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 9.02 OF THE POOLING AGREEMENT REFERRED TO HEREIN.]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
A TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS
TO THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER ACCEPTABLE TO
AND IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR STATING
THAT (A) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING A
COLLECTIVE INVESTMENT FUND (OR INSURANCE COMPANY GENERAL ACCOUNT) OR INDIVIDUAL
RETIREMENT ACCOUNT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE CODE
(COLLECTIVELY, A "PLAN") OR A PERSON ACTING FOR, OR ON BEHALF OF, OR USING THE
ASSETS OF, A PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY,
THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE
COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12,
1995)) AND
A-1-1
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER
SECTIONS I AND III OF PTCE 95-60 OR (II) AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF SUCH OFFERED CERTIFICATE BY A PLAN OR ANY GOVERNMENT
PLAN, CHURCH PLAN OR ANY OTHER ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE
OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA
OR THE CODE ("SIMILAR LAW") OR A PERSON ACTING FOR, ACTING ON BEHALF OF, OR
USING ASSETS OF SUCH A PLAN (A) WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
A VIOLATION OF SIMILAR LAW AND (B) WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR,
THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER OR ANY 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
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE SECURITIES
ADMINISTRATOR OR THE SPONSOR. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE
REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON
HAS PROVIDED SUCH REPRESENTATION LETTER OR OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AGREEMENT
PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.(1)
----------
(1) Include this legend for Classes ▇▇▇, ▇▇▇ and A3
A-1-2
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS A-[ - ]
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR.
PASS-THROUGH RATE: [ - ]
DATE OF POOLING AGREEMENT: AS OF SEPTEMBER 1, 2006
CLOSING DATE: SEPTEMBER 28, 2006
FIRST DISTRIBUTION DATE: OCTOBER 25, 2006
PERCENTAGE INTEREST: [ - ]%
NO. 1
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-[ - ] CERTIFICATES AS OF THE
CLOSING DATE: $[ - ]
MORTGAGE LOAN CUT-OFF DATE BALANCE: $[ - ]
MASTER SERVICER: ▇▇▇▇▇ FARGO BANK, N.A.
TRUSTEE: HSBC BANK USA, NATIONAL ASSOCIATION
CUSIP NO.: [ - ]
A-1-3
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS A-[ - ]
evidencing a beneficial ownership interest in a Trust Fund that consists
primarily of a pool of Mortgage Loans (the "Mortgage Loans") formed and sold by
▇▇▇▇▇ ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
UNDERWRITERS, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR,
THE SELLER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. UNLESS EXPRESSLY PROVIDED IN
THE PROSPECTUS SUPPLEMENT, THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class A-[ - ] Certificates issued by Luminent Mortgage Trust ▇▇▇▇-▇ (▇▇▇
"▇▇▇▇▇ ▇▇▇▇"), which was created pursuant to a Pooling Agreement, dated as of
September 1, 2006 (the "Pooling Agreement") by and among ▇▇▇▇▇ Asset
Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage Finance
Statutory Trust, as seller (the "Seller"), HSBC Bank USA, National Association,
as trustee (the "Trustee"), and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the
"Master Servicer") and securities administrator (the "Securities
Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned to them in the Pooling Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling Agreement, to which Pooling Agreement the Holder of
this Certificate, by virtue of the acceptance hereof, assents and by which such
Holder is bound.
Distributions of principal of and interest on this Certificate (including
the final distribution on this Certificate) will be made out of the Available
Funds, to the extent and subject to the limitations set forth in the Pooling
Agreement, on the 25th day of each month commencing in October 2006 or, if such
25th day is not a Business Day, the Business Day immediately following (a
"Distribution Date"), to the Person in whose name this Certificate is registered
at the close of business on the Business Day preceding such Distribution Date
(the related "Record Date"). All sums distributed on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Pass-Through Rate on the Class A-[ - ] Certificates for any
Distribution Date will be equal to [ - ]. Principal and interest will be
distributed on this Certificate on any Distribution Date in the manner specified
in the Pooling Agreement. Distributions allocated to the Class A-[ - ]
Certificates will be allocated among the Certificates of such Class pro rata
based upon their
A-1-4
respective Percentage Interests, with a final distribution to be made upon
retirement of this Certificate as set forth in the Pooling Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 2006-6 Mortgage Pass-Through
Certificates, Series 2006-6 (herein called the "Certificates") and representing
a Percentage Interest specified on the face hereof in the Class A-[ ]
Certificates. The Certificates are issued in sixteen classes as set forth in the
Pooling Agreement. The Certificates evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
Certain Realized Losses on and certain other shortfalls in respect of the
Mortgage Loans will be allocated on any Distribution Date to Holders of Class B
Certificates by allocation to the related Certificates of an Applied Loss Amount
in the manner set forth in the Pooling Agreement. Applied Loss Amounts will be
allocated on each Distribution Date to the Class B Certificates in reverse order
of their respective numerical Class designations until the respective
Certificate Principal Balance of each such Class is reduced to zero.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling Agreement. As provided in the Pooling Agreement, withdrawals from
the Distribution Account, the Custodial Account and related accounts shall be
made from time to time for purposes other than distributions to Holders, such
purposes including reimbursement of fees and expenses, including Advances made
by the Servicer, and certain expenses and indemnities amounts incurred with
respect to the Mortgage Loans and administration of the Trust Fund.
So long as this Certificate is registered in the name of a Depository or
its nominee, the Securities Administrator shall make distributions on each
Distribution Date to the Holder of such Certificate as of the related Record
Date either (i) by wire transfer of immediately available funds to the account
of such Holder at a bank or other entity having appropriate facilities therefor,
if such Holder has so notified the Securities Administrator at least five
Business Days prior to the related Record Date or (ii) by check mailed by first
class mail to such Holder at the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Securities Administrator
specified in the final distribution notice to Certificateholders.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator and the rights of the Holders under the Pooling Agreement at any
time by the Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator, with the consent of the Holders of a Majority of
Interest of each Class of Certificates (and in certain circumstances a higher
percentage of such Voting Interests as specified in the Pooling Agreement). Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
The Pooling
A-1-5
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling Agreement, the Certificates of this
Class will be registered as one or more certificates held by the Depository or
its nominee and beneficial interests will be held by Beneficial Owners through
the book-entry facilities of the Depository or its nominee in minimum
denominations of $100,000 and integral multiples of $1 in excess thereof.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, at the option of the Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon the surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Securities Administrator or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, the Master Servicer, the Securities Administrator,
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the majority holder of the Class C Certificates may make
a
A-1-6
Clean-up Call or cause a Clean-up Call to be made pursuant to Section 11.01 of
the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling Agreement or be
valid for any purpose.
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-1-7
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ▇▇▇▇▇ FARGO BANK, N.A., NOT IN ITS
------------------ INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-[ - ] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
▇▇▇▇▇ FARGO BANK, N.A.,
AS SECURITIES ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
A-1-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
___________________
JT TEN - as joint tenants with right (State)
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
A-1-9
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated:
------------------------------ ---------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
----------------------------------------
SIGNATURE GUARANTEED: The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of the
New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-1-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to______________________ ____________________________________,
for the account of ____________________________, account number _______________,
or, if mailed by check, to ____________________________. Applicable reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS B CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE SECURITIES
ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [ - ] OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [ - ] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, [ - ], HAS AN INTEREST HEREIN.(2)
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 9.02 OF THE POOLING AGREEMENT REFERRED TO HEREIN.]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
A TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS
TO THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER ACCEPTABLE TO
AND IN THE FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR
STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, AN EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, INCLUDING A COLLECTIVE INVESTMENT FUND (OR INSURANCE
COMPANY GENERAL ACCOUNT) OR INDIVIDUAL RETIREMENT ACCOUNT THAT IS SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR SECTION 4975 OF THE CODE (COLLECTIVELY, A "PLAN") OR A PERSON
ACTING FOR, OR ON BEHALF OF, OR USING THE ASSETS OF, A PLAN TO
----------
(2) Include this legend for Classes B-1 through B-8.
A-2-1
EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)) AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PTCE 95-60 OR (II) AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE SECURITIES ADMINISTRATOR TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF SUCH OFFERED CERTIFICATE BY A PLAN OR A GOVERNMENT PLAN, CHURCH PLAN
OR ANY OTHER ARRANGEMENT THT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT
IS SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
("SIMILAR LAW") OR A PERSON ACTING FOR, ACTING ON BEHALF OF, OR USING ASSETS OF
SUCH A PLAN (A) WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR A VIOLATION
OF SIMILAR LAW AND (B) WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR, THE
SECURITIES ADMINISTRATOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR
ANY 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 AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF ANY SUCH PERSON. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE
REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON
HAS PROVIDED SUCH REPRESENTATION LETTER OR OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AGREEMENT
PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
THE CLASS [B- ] CERTIFICATES ARE SUBORDINATED TO THE CLASS A, [AND] CLASS [B- ]
CERTIFICATES ISSUED BY THE TRUST DESCRIBED HEREIN TO THE EXTENT DESCRIBED HEREIN
AND IN THE POOLING AGREEMENT REFERRED TO HEREIN.
A-2-2
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS B-[1-8]
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
PASS-THROUGH RATE: [ - ]
DATE OF POOLING AGREEMENT: AS OF SEPTEMBER 1, 2006
CLOSING DATE: SEPTEMBER 28, 2006
FIRST DISTRIBUTION DATE: OCTOBER 25, 2006
PERCENTAGE INTEREST: [ - ]%
NO. 1
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS [B- ] CERTIFICATES AS OF THE CLOSING
DATE: $[ - ]
MORTGAGE LOAN CUT-OFF DATE BALANCE: $[ - ]
MASTER SERVICER: ▇▇▇▇▇ FARGO BANK, N.A.
TRUSTEE: HSBC BANK USA, NATIONAL ASSOCIATION
CUSIP NO.: [ - ]
A-2-1
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS B-[1-8]
evidencing a beneficial ownership interest in a Trust Fund, which Trust Fund
consists primarily of a pool of Mortgage Loans (the "Mortgage Loans") formed and
sold by
▇▇▇▇▇ ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
UNDERWRITERS, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR,
THE SELLER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. UNLESS EXPRESSLY PROVIDED IN
THE PROSPECTUS SUPPLEMENT, THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class [ - ] Certificates issued by Luminent Mortgage Trust ▇▇▇▇-▇ (▇▇▇
"▇▇▇▇▇ ▇▇▇▇"), which was created pursuant to a Pooling Agreement, dated as of
September 1, 2006 (the "Pooling Agreement") by and among ▇▇▇▇▇ Asset
Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage Finance
Statutory Trust, as seller (the "Seller"), HSBC Bank USA, National Association,
as trustee (the "Trustee"), and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned to them in the Pooling Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling Agreement, to which Pooling Agreement the Holder of
this Certificate, by virtue of the acceptance hereof, assents and by which such
Holder is bound.
Distributions of principal of and interest on this Certificate (including
the final distribution on this Certificate) will be made out of the Available
Funds, to the extent and subject to the limitations set forth in the Pooling
Agreement, on the 25th day of each month commencing in October 2006 or, if such
25th day is not a Business Day, the Business Day immediately following (a
"Distribution Date"), to the Person in whose name this Certificate is registered
at the close of business on the Business Day preceding such Distribution Date
(the related "Record Date"). All sums distributed on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Pass-Through Rate on the Class [B- ] Certificates for any Distribution
Date will be equal to [ - ]. Principal and interest will be distributed on this
Certificate on any Distribution Date in the manner specified in the Pooling
Agreement. Distributions allocated to the Class [B- ] Certificates will be
allocated among the Certificates of such Class pro rata based upon their
A-2-1
respective Percentage Interests, with a final distribution to be made upon
retirement of this Certificate as set forth in the Pooling Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 2006-6 Mortgage Pass-Through
Certificates, Series 2006-6 (herein called the "Certificates") and representing
a Percentage Interest specified on the face hereof in the Class B- [ ]
Certificates. The Certificates are issued in six classes as specifically set
forth in the Pooling Agreement. The Certificates evidence in the aggregate 100%
of the beneficial ownership of the Trust Fund.
The Class [B- ] Certificates will be subordinated to the Class A [and]
Class [B- ] Certificates, and the Class M, Class C, Class P, Class R and Class
RX Certificates will be subordinated to the Class B-1 through Class B-8
Certificates, in each case to the extent provided in the Pooling Agreement.
Certain Realized Losses on and certain other shortfalls in respect of the
Mortgage Loans will be allocated on any Distribution Date to Holders of Class M
Certificates by allocation to the related Certificates of an Applied Loss Amount
in the manner set forth in the Pooling Agreement. Applied Loss Amounts will be
allocated on each Distribution Date to the Class M Certificates in reverse order
of their respective numerical Class designations until the respective
Certificate Principal Balance of each such Class is reduced to zero.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling Agreement. As provided in the Pooling Agreement, withdrawals from
the Distribution Account, the Custodial Account and related accounts shall be
made from time to time for purposes other than distributions to Holders, such
purposes including reimbursement of fees and expenses, including Advances made
by the Servicer, and certain expenses and indemnities amounts incurred with
respect to the Mortgage Loans and administration of the Trust Fund.
So long as this Certificate is registered in the name of a Depository or
its nominee, the Securities Administrator shall make distributions on each
Distribution Date to the Holder of such Certificate as of the related Record
Date either (i) by wire transfer of immediately available funds to the account
of such Holder at a bank or other entity having appropriate facilities therefor,
if such Holder has so notified the Securities Administrator at least five
Business Days prior to the related Record Date or (ii) by check mailed by first
class mail to such Holder at the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Securities Administrator
specified in the final distribution notice to Certificateholders.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Master Servicer, the Securities Administrator and
the Seller, the Master Servicer, the Securities Administrator and the rights of
the Holders under the Pooling Agreement at any time by the Depositor, the
Trustee and the Seller, with the consent of the Holders of a Majority of
A-2-2
Interest of each Class of Certificates (and in certain circumstances a higher
percentage of such Voting Interests as specified in the Pooling Agreement). Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
The Pooling Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling Agreement, the Certificates of this
Class will be registered as one or more certificates held by the Depository or
its nominee and beneficial interests will be held by Beneficial Owners through
the book-entry facilities of the Depository or its nominee in minimum
denominations of $100,000 and integral multiples of $1 in excess thereof.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, at the option of the Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon the surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Securities Administrator and the
Trustee and any agent of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Master Servicer, the Securities Administrator, the Trustee nor
any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund
A-2-3
continue beyond the earlier of (i) the expiration of 21 years from the death of
the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the
United States to the Court of the St. James's, living on the date hereof and
(ii) the Latest Possible Maturity Date. Pursuant to the terms of the Pooling
Agreement, the Servicer may make a Clean-up Call or cause a Clean-up Call to be
made pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling Agreement or be
valid for any purpose.
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-2-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ▇▇▇▇▇ FARGO BANK, N.A., NOT IN ITS
----------------------------- INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [B- ] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
---------------------------------------,
AS SECURITIES ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
A-2-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
___________________
JT TEN - as joint tenants with right (State)
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
A-2-6
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated:
------------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
----------------------------------------
SIGNATURE GUARANTEED: The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of the
New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not
acceptable.
A-2-7
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 reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS C CERTIFICATE
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
THIS CLASS C CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES OF THIS
SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AGREEMENT REFERRED TO
HEREIN.
THIS CLASS C CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AGREEMENT REFERRED TO HEREIN.
[THIS CLASS C CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 9.02 OF THE POOLING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
INCLUDING AN, COLLECTIVE INVESTMENT FUND (OR INSURANCE COMPANY GENERAL ACCOUNT)
OR INDIVIDUAL RETIREMENT ACCOUNT THAT IS SUBJECT TO TITLE I OF ERISA, SECTION
4975 OF THE CODE OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA),
OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA) OR OTHER EMPLOYEE
BENEFIT PLAN OR RETIREMENT ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR
THE CODE ("SIMILAR LAW") (EACH, A "PLAN") OR TO ANY PERSON ACTING DIRECTLY OR
INDIRECTLY ON BEHALF OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE REGISTERED
EXCEPT AS PROVIDED IN THE POOLING AGREEMENT.
A-3-1
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS C
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
DATE OF POOLING AGREEMENT: AS OF SEPTEMBER 1, 2006
CLOSING DATE: SEPTEMBER 28, 2006
FIRST DISTRIBUTION DATE: OCTOBER 25, 2006
PERCENTAGE INTEREST: [ - ]%
NO. 1
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $[ - ]
MORTGAGE LOAN CUT-OFF DATE BALANCE: $[ - ]
MASTER SERVICER: ▇▇▇▇▇ FARGO BANK, N.A.
TRUSTEE: HSBC BANK USA, NATIONAL ASSOCIATION
CUSIP NO.: [ - ]
A-3-2
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS C
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of mortgage loans (the "Mortgage Loans") formed and sold by
▇▇▇▇▇ ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE SELLER, THE TRUSTEE
OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of a Percentage Interest set forth above in that certain
beneficial ownership interest evidenced by all the Class C Certificates in the
Trust Fund created pursuant to a Pooling Agreement, dated as specified above
(the "Pooling Agreement") by and among ▇▇▇▇▇ Asset Securitization, Inc., as
depositor (the "Depositor"), Maia Mortgage Finance Statutory Trust, as Seller
(the "Seller"), HSBC Bank USA, National Association, as trustee (the "Trustee")
and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the "Master Servicer") and as
securities administrator (the "Securities Administrator"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling Agreement, to which Pooling
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Distributions of principal of and interest (based on a notional amount) on
this Certificate (including the final distribution on this Certificate) will be
made out of the Available Funds, to the extent and subject to the limitations
set forth in the Pooling Agreement, on the 25th day of each month commencing in
October 2006 or, if such 25th day is not a Business Day, the Business Day
immediately following (a "Distribution Date"), to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the calendar month immediately preceding such Distribution Date (the related
"Record Date"). All sums distributed on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
This Certificate is one of a duly authorized issue of Certificates
designated as Luminent Mortgage Trust 2006-6 Mortgage Pass-Through Certificates,
of the Series specified on the face hereof (herein called the "Certificates")
and representing the Percentage Interest specified on the face hereof.
Distributions allocated to the Class C Certificates will be allocated among the
Certificates of such Class pro rata based upon their respective Percentage
Interests with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling Agreement.
A-3-3
The Class C Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Pooling Agreement. As provided in the
Pooling Agreement, withdrawals from the Distribution Account, the Custodial
Account and related accounts shall be made from time to time for purposes other
than distributions to Holders, such purposes including reimbursement of fees and
expenses, including Advances made by the Servicer, and certain expenses and
indemnities amounts incurred with respect to the Mortgage Loans and
administration of the Trust Fund.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator and the rights of the Holders under the Pooling Agreement at any
time by the Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator, with the consent of the Holders of a Majority of
Interest of each Class of Certificates (and in certain circumstances a higher
percentage of such Voting Interests as specified in the Pooling Agreement). Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
The Pooling Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests specified in the
Pooling Agreement.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, at the option of the Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon the surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
No transfer of any Class C Certificates shall be made unless that transfer
is made pursuant to an effective registration statement under the Act and
effective registration or
A-3-4
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification and in each
case, in accordance with Section 9.02 of the Pooling Agreement. In the event
that a transfer is to be made without registration or qualification under the
Act and applicable state securities laws, the Securities Administrator shall not
register such transfer unless and until the prospective transferee provides the
Securities Administrator with the certifications and opinions required by
Section 9.02 of the Pooling Agreement. Any such Holder desiring to effect such
transfer shall, and does hereby agree to, indemnify the Depositor, the Trustee,
the Seller, the Master Servicer and the Securities Administrator against any
liability that may result if the transfer is not exempt from registration under
the Act and all applicable state securities laws or is not made in accordance
with such federal and state laws.
Further, except for certain transfers identified in Section 9.02 of the
Pooling Agreement, no transfer of a Class C Certificate shall be made unless and
until the prospective transferee provides the Securities Administrator with a
properly executed and completed Benefit Plan Affidavit (or an Opinion of
Counsel, if required pursuant to the Benefit Plan Affidavit), which Affidavit
(or an Opinion of Counsel, if required) shall not be obtained at the expense of
the Trustee, the Depositor, the Master Servicer or the Securities Administrator.
Notwithstanding anything herein to the contrary, any purported transfer of a
Class C Certificate to or on behalf of a Plan (as defined in the Benefit Plan
Affidavit) or any person acting, directly or indirectly, on behalf of a Plan or
investing assets of a Plan without delivery of an Opinion of Counsel shall be
null and void.
The Depositor, the Trustee, the Seller, the Master Servicer, the Securities
Administrator and the Originator and any agent of the Depositor or the Trustee
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the Servicer may make a Clean-up Call or cause a Clean-up
Call to be made pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling Agreement or be
valid for any purpose.
A-3-5
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-3-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ▇▇▇▇▇ FARGO BANK, N.A., NOT IN ITS
------------------------------- INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AGREEMENT.
---------------------------------------,
AS SECURITIES ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
A-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above
list.
A-3-8
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated:
------------------------------ ----------------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------------
SIGNATURE GUARANTEED: The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of the
New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not
acceptable.
A-3-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to_________________________ ____________________________, for
the account of _______________________________, account number ________________,
or, if mailed by check, to ________________________________. Applicable reports
and statements should be mailed to _________________________. This information
is provided by ______________________________________________, the assignee
named above, or __________________________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF RESIDUAL CERTIFICATE
THE CLASS [R] [RX] CERTIFICATES ARE SUBORDINATED TO THE OTHER CLASSES OF
THE CERTIFICATES ISSUED BY THE TRUST DESCRIBED HEREIN TO THE EXTENT DESCRIBED
HEREIN AND IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS. THIS
CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER
SUCH LAWS OR QUALIFICATION FOR AN EXEMPTION FROM SUCH REGISTRATION. THE
SECURITIES ADMINISTRATOR SHALL REQUIRE A CERTIFICATE FROM ANY TRANSFEROR AND
TRANSFEREE HEREOF DEMONSTRATING COMPLIANCE WITH APPLICABLE SECURITIES LAWS AND,
UNDER CERTAIN CIRCUMSTANCES, THE SECURITIES ADMINISTRATOR MAY REQUIRE AN OPINION
OF COUNSEL WITH RESPECT TO SUCH REGISTRATION OR QUALIFICATION. ANY TRANSFEREE OF
THIS CERTIFICATE MUST DELIVER TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND
THE DEPOSITOR A RESIDUAL TRANSFEREE AGREEMENT CONTAINING CERTAIN REPRESENTATIONS
AND COVENANTS. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS [R] [RX]
CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES THE SECURITIES
ADMINISTRATOR WITH A RESIDUAL TRANSFEREE AGREEMENT CONTAINING CERTAIN
REPRESENTATIONS AND COVENANTS, AN AFFIDAVIT RELATING TO VARIOUS TAX MATTERS, AND
AN AFFIDAVIT RELATING TO VARIOUS ERISA MATTERS (AND AN OPINION OF COUNSEL AS TO
ERISA MATTERS IF REQUIRED UNDER SUCH AFFIDAVIT), ALL AS DESCRIBED IN THE POOLING
AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF A CLASS [R] [RX] CERTIFICATE SHALL
BE PERMITTED TO BE MADE TO A DISQUALIFIED ORGANIZATION, WHICH GENERALLY INCLUDES
ANY ENTITY THAT WOULD BE EXEMPT FROM FEDERAL INCOME TAXATION (INCLUDING THE TAX
ON UNRELATED BUSINESS TAXABLE INCOME) ON INCOME DERIVED FROM THIS CLASS [R] [RX]
CERTIFICATE. RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE ARE DESCRIBED MORE
FULLY HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
INCLUDING AN, COLLECTIVE INVESTMENT FUND (OR INSURANCE COMPANY GENERAL ACCOUNT)
OR INDIVIDUAL RETIREMENT ACCOUNT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE CODE OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA), OR A
CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA) OR OTHER EMPLOYEE BENEFIT
PLAN OR RETIREMENT ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW WHICH IS
A-4-1
SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR
LAW") (EACH, A "PLAN") OR TO ANY PERSON ACTING, DIRECTLY OR INDIRECTLY ON BEHALF
OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE REGISTERED.
THE HOLDER OF THIS CLASS [R] [RX] CERTIFICATE IS NOT ENTITLED TO SCHEDULED
DISTRIBUTIONS OF PRINCIPAL OR INTEREST.
A-4-2
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS [R] [RX] CERTIFICATE
THIS CLASS [R] [RX] CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP OF A REMIC
RESIDUAL INTEREST IN EACH OF TWO REMICS UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED.
DATE OF POOLING AGREEMENT: AS OF SEPTEMBER 1, 2006
CLOSING DATE: SEPTEMBER 28, 2006
PERCENTAGE INTEREST: [ - ]%
NO. 1
MORTGAGE LOAN CUT-OFF DATE BALANCE: $[ - ]
MASTER SERVICER: ▇▇▇▇▇ FARGO BANK, N.A.
TRUSTEE: HSBC BANK USA, NATIONAL ASSOCIATION
A-4-3
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS [R] [RX] CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund that consists
primarily of a pool of Mortgage Loans (the "Mortgage Loans") formed and sold by
▇▇▇▇▇ ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE SELLER, THE TRUSTEE
OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class [R] [RX] Certificates issued by Luminent Mortgage Trust ▇▇▇▇-▇ (▇▇▇
"▇▇▇▇▇ ▇▇▇▇"), which was created pursuant to a Pooling Agreement, dated as of
September 1, 2006 (the "Pooling Agreement") by and among ▇▇▇▇▇ Asset
Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage Finance
Statutory Trust, as seller (the "Seller"), HSBC Bank USA, National Association,
as trustee (the "Trustee") and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned to them in the Pooling Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling Agreement, to which Pooling Agreement the Holder of
this Certificate, by virtue of the acceptance hereof, assents and by which such
Holder is bound.
The Holder of this Certificate will not be entitled to any scheduled
distributions of principal or interest. Distributions on this Certificate, if
any (including the final distribution on this Certificate), will be made on the
25th day of each month commencing in October 2006 or, if such 25th day is not a
Business Day, the Business Day immediately following (a "Distribution Date"), to
the Person in whose name this Certificate is registered at the close of business
on the last Business Day of the calendar month preceding such Distribution Date
(the related "Record Date"). All sums distributed on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
Distributions, if any, will be made to the Holders of the Class [R] [RX]
Certificates as described in the Pooling Agreement. Distributions allocated to
the Class [R] [RX] Certificates will be allocated among the Certificates of such
Class pro rata based upon their respective Percentage Interests, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling Agreement.
A-4-4
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 2006-6 Mortgage Pass-Through
Certificates, Series 2006-6 (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof.
The Certificates are issued in nineteen classes as specifically set forth in the
Pooling Agreement. The Class [R] [RX] Certificates are sometimes referred to as
the "Residual Certificates." The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
The Class [R] [RX] Certificates will be subordinated to the Certificates of
all other Classes [(other than the Class RX Certificates)] to the extent
provided in the Pooling Agreement.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling Agreement. As provided in the Pooling Agreement, withdrawals from
the Distribution Account, the Custodial Account and related accounts shall be
made from time to time for purposes other than distributions to Holders, such
purposes including reimbursement of fees and expenses, including Advances made
by the Servicer, and certain expenses and indemnities amounts incurred with
respect to the Mortgage Loans and administration of the Trust Fund.
An election will be made to treat certain of the assets assigned to the
Trust Fund as two separate real estate mortgage investment conduits ("REMICs")
under the Internal Revenue Code of 1986, as amended (the "Code"). Assuming that
the elections are made properly and that certain qualification requirements
concerning the Mortgage Loans and the Certificates are met, the Holder of this
Certificate will be treated for federal income tax purposes as the beneficial
owner of a "residual interest" in each of the two REMICs, as described in the
Pooling Agreement. Accordingly, the Holder of this Class [R] [RX] Certificate
will be taxed on its pro rata share of each such REMIC's taxable income or net
loss. The requirement that the Holder of this Class [R] [RX] Certificate report
its pro rata share of such income or loss will continue until there are no
Certificates of any Class outstanding.
By accepting this Certificate, the Holder of this Certificate agrees to be
bound by all of the provisions of the Pooling Agreement, and, in particular,
agrees that it shall (i) take any action required by the Code or Treasury
regulations thereunder in order to create or maintain the REMIC status of each
REMIC and (ii) refrain from taking any action that could endanger such status.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator and the rights of the Holders under the Pooling Agreement at any
time by the Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator, with the consent of the Holders of Certificates
evidencing at least a majority of the Voting Interests of each Class affected by
the proposed amendment (and in certain circumstances a higher percentage of such
Voting Interests as specified in the Pooling Agreement). Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer or exchange hereof or in lieu herefor, regardless of whether
notation of such consent is made upon this Certificate. The Pooling Agreement
also permits the
A-4-5
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
The Certificates of this Class are issuable in fully-registered,
certificated form without coupons in minimum Percentage Interests of 10% and
integral multiples thereof.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class in authorized denominations as requested by the Holder surrendering
the same. No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
No transfer of any Class [R] [RX] Certificates shall be made unless that
transfer is made pursuant to an effective registration statement under the Act
and effective registration or qualification under applicable state securities
laws, or is made in a transaction that does not require such registration or
qualification and in each case, in accordance with Section 9.02 of the Pooling
Agreement. In the event that a transfer is to be made without registration or
qualification under the Act and applicable state securities laws, the Securities
Administrator shall not register such transfer unless and until the prospective
transferee provides the Securities Administrator with the certifications and
opinions required by Section 9.02 of the Pooling Agreement. Any such Holder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator against any liability that may result if the transfer is not
exempt from registration under the Act and all applicable state securities laws
or is not made in accordance with such federal and state laws.
Further, no transfer of a Class [R] [RX] Certificate shall be made unless
and until the prospective transferee provides the Securities Administrator with
a properly executed and completed Benefit Plan Affidavit in accordance with
Section 9.02(c) of the Pooling Agreement.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
for all purposes to have consented to the provisions of Section 9.02(f) of the
Pooling Agreement, including the requirement that any transferee of this
Certificate provide a properly executed affidavit substantially in the form of
Exhibit H to the Pooling Agreement.
A-4-6
If a tax or a reporting cost is borne by any REMIC as a result of the
transfer of a Class [R] [RX] Certificate (or any beneficial interest therein) in
violation of the restrictions set forth herein and in the Pooling Agreement, the
Securities Administrator shall pay such tax or reporting cost with amounts that
otherwise would have been paid to the transferee of the Class [R] [RX]
Certificate (or beneficial interest therein). In that event, neither the
transferee nor the transferor shall have any right to seek repayment of such
amounts from the Depositor, the Trustee, the Master Servicer, the Securities
Administrator, any REMIC or any other Holders, and none of such parties shall
have any liability for payment of any such tax or reporting cost.
The Depositor, the Master Servicer, the Securities Administrator and the
Trustee and any agent of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee nor
any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the Servicer may make a Clean-up Call or cause a Clean-up
Call to be made pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual signature, this Certificate shall not
represent entitlement to any benefit under the Pooling Agreement or be valid for
any purpose.
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
This Class [R] [RX] Certificate is a security governed by Article 8 of the
Uniform Commercial Code.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-4-7
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ▇▇▇▇▇ FARGO BANK, N.A., NOT IN ITS
------------------------------ INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [R] [RX] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
---------------------------------------,
AS SECURITIES ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
A-4-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the under Uniform Gifts
entireties to Minors Act
JT TEN - as joint tenants with ________________
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may also be used though not in the above
list.
A-4-9
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint ______
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated:
------------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-----------------------------------------
SIGNATURE GUARANTEED: The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of the
New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not
acceptable.
A-4-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to_________________________________
__________________________________, for the account of
_______________________________, account number __________________, or, if
mailed by check, to ____________________________. Applicable reports and
statements should be mailed to ____________________________________________.
This information is provided by
____________________________________________________, the assignee named above,
or ___________________________________________________, as its agent
A-4-11
POOLING AGREEMENT
EXHIBITS
TABLE OF CONTENTS
EXHIBITS
Exhibit B - Information Fields for Mortgage Loan Schedule
Exhibit C - Contents of each Mortgage File
Exhibit D - Form of Request for Release
Exhibit E - Form of Transferor Certificate
Exhibit F-1 - Form of Investment Letter (Non- Rule 144A)
Exhibit F-2 - Form of Investment Letter (Rule 144A)
Exhibit G - Form of Benefit Plan Affidavit
Exhibit H - Form of Affidavit Regarding Transfer of Residual Certificate
Exhibit I - Additional Form 10-D Disclosure
Exhibit J - Additional Form 10-K Disclosure
Exhibit K - Additional Form 8-K Disclosure
Exhibit L - Additional Disclosure Notification
Exhibit M-1 - Form of Schedule to Interest Rate Swap Agreement
Exhibit M-2 - Form of Confirmation to Interest Rate Swap Agreement
Exhibit 1122 - Relevant Servicing Criteria
Exhibit Sox - Sarbanes Oxley Certificate
SCHEDULES
Schedule A - Mortgage Loan Schedule
(i)
EXHIBIT B
INFORMATION FIELDS FOR MORTGAGE LOAN SCHEDULE
With respect to each Mortgage Loan:
1. the Loan identification number;
2. the applicable Cut-off Date;
3. the zip code of the Mortgaged Property;
4. the applicable Servicer;
5. a code indicating whether the Mortgaged Property is a single family
residence, two-family residence, three to four family residence, planned unit
development, condominium, townhouse, row home or manufactured home;
6. the current Mortgage Rate;
7. the current Scheduled Monthly Payment;
8. the original term to maturity;
9. the scheduled maturity date;
10. the scheduled principal balance of the Mortgage Loan as of the Cut-off
Date;
11. the original Loan-to-Value Ratio;
12. the FICO score of the Mortgagor at the time of origination;
13. a code indicating the credit grade of each Mortgage Loan as assigned by
the Originator;
14. the date on which the first Scheduled Monthly Payment was or will be
due;
15. the date on which the next payment is due;
16. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇);
17. loan purpose (i.e., purchase, rate/term refinance, cash-out refinance);
18. a code indicating whether the Mortgaged Property is owner occupied or
non-owner occupied;
19. a code indicating the product type (e.g., 2/28, 3/27, 15 year fixed,
etc.);
B-1
20. a code indicating whether the Mortgage Loan is subject to a Prepayment
Premium;
21. the term of any Prepayment Premium;
22. the type and amount of any Prepayment Premium;
23. with respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
24. with respect to each Adjustable Rate Mortgage Loan, the next Adjustment
Date;
25. with respect to each Adjustable Rate Mortgage Loan, the lifetime
maximum Mortgage Interest Rate;
26. with respect to each Adjustable Rate Mortgage Loan, the lifetime
minimum Mortgage Interest Rate;
27. with respect to each Adjustable Rate Mortgage Loan, the periodic
Payment Cap;
28. with respect to each Adjustable Rate Mortgage Loan, the Index;
29. a code indicating whether the Mortgage Loan is an adjustable rate or
fixed rate mortgage loan;
30. a code indicating whether the Mortgage Loan is a negatively amortizing
loan;
31. a code indicating the payment reset provisions;
32. a code indicating whether the Mortgage Loan is a balloon loan;
33. a code indicating whether the Mortgage Loan is a "high cost" (or
similarly classified) loan under applicable federal, state and local laws; and
34. a code indicating whether the Mortgage Loan has a Lender Paid Mortgage
Insurance Policy, and if so, the applicable fee rate.
With respect to the Mortgage Loans in the aggregate in the related Mortgage
Loan Package, the respective Mortgage Loan Schedule shall set forth the
following information, as of the Cut-off Date:
1. the number of Mortgage Loans;
2. the current aggregate outstanding scheduled principal balance of the
Mortgage Loans;
3. the current weighted average Mortgage Interest Rate of the Mortgage
Loans; and
4. the weighted average months to maturity of the Mortgage Loans.
B-2
EXHIBIT C
CONTENTS OF MORTGAGE LOAN FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items delivered to the Trustee (or its designee), portions of
which may be held by the Servicer in the Servicing File:
(i) The original Mortgage Note (with all riders) endorsed either in
blank or in the following form: "Pay to the order of HSBC Bank USA,
National Association, as trustee (the "TRUSTEE") for the Luminent Mortgage
Trust 2006-6 Mortgage Pass-Through Certificates, Series 2006-6, without
recourse" and signed in the name of the Seller by an Authorized Officer
(provided, in the event that the Mortgage Loan was acquired by the Seller
in a merger, the signature must be in the following form: "[Seller],
successor by merger to [name of predecessor]"; and in the event that the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the signature must be in the following form: "[Seller],
formerly known as [previous name]"). The Mortgage Note must contain all
necessary intervening endorsements showing a complete chain of endorsement
from the Originator (each such endorsement being sufficient to transfer all
right, title and interest of the party so endorsing, as the holder of the
Mortgage Note or assignee thereof, in and to that Mortgage Note); or
With respect to no more than 1% of the Cut-off Date Balance, a
certified copy of the Mortgage Note (endorsed as provided above) together
with a lost note affidavit, providing indemnification to the holder thereof
for any losses incurred due to the fact that the original Mortgage Note is
missing.
(ii) The original of any guarantee executed in connection with the
Mortgage Note (if any).
(iii) The original Mortgage (with all riders), with evidence of
recording thereon, except as follows: If in connection with any Mortgage
Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the
Trustee, a photocopy of such Mortgage, together with, in the case of a
delay caused by the public recording office, an Officer's Certificate of
the Seller stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Trustee upon receipt thereof by
the Seller.
(iv) The originals or certified true copies of any document sent for
recordation of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, or, if the original of any
such agreement with evidence of recording
C-1
thereon has not been returned by the public recording office where such
agreement has been delivered for recordation or such agreement has been
lost or such public recording office retains the original recorded
agreement, a photocopy of such agreement, certified by the Seller or its
agent to be a true and correct copy of the agreement delivered to the
appropriate public recording office for recordation. The original recorded
agreement or, in the case of a agreement where a public recording office
retains the original recorded agreement or in the case where an agreement
is lost after recordation in a public recording office, a copy of such
agreement certified by such public recording office to be a true and
complete copy of the original recorded agreement, will be promptly
delivered to the Trustee upon receipt thereof by the Seller.
(v) The original Assignment of Mortgage in blank for each Mortgage
Loan, in form and substance acceptable for recording. If the Mortgage Loan
was acquired by the Seller in a merger, the Assignment of Mortgage must be
made by "[Seller], successor by merger to [name of predecessor]." If the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment of Mortgage must be made by "[Seller],
formerly know as [previous name]." Subject to the foregoing and where
permitted under the applicable laws of the jurisdiction wherein the
Mortgaged property is located, such Assignments of Mortgage may be made by
blanket assignments for Mortgage Loans secured by the Mortgaged Properties
located in the same county. If the related Mortgage has been recorded in
the name of MERS or its designee, no Assignment of Mortgage will be
required to be prepared or delivered and instead, the Seller shall take all
actions as are necessary to cause the Trustee to be shown as the owner of
the related Mortgage Loan on the records of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by
MERS.
(vi) For any Mortgage Loan not recorded in the name of MERS, originals
or certified true copies of documents sent for recordation of all
Intervening Assignments of the Mortgage with evidence of recording thereon,
or if any such Intervening Assignment has not been returned from the
applicable recording office or has been lost or if such public recording
office retains the original recorded assignments of mortgage, the Seller
shall deliver or cause to be delivered to the Trustee, a photocopy of such
Intervening Assignment, together with (i) in the case of a delay caused by
the public recording office, an Officer's Certificate of the Seller stating
that such Intervening Assignment of Mortgage has been dispatched to the
appropriate public recording office for recordation and that such original
recorded Intervening Assignment of Mortgage or a copy of such Intervening
Assignment of Mortgage certified by the appropriate public recording office
or by the title insurance company that issued the title policy to be a true
and complete copy of the original recorded Intervening Assignment of
Mortgage will be promptly delivered to the Trustee upon receipt thereof by
the Seller; or (ii) in the case of an Intervening Assignment where a public
recording office retains the original recorded Intervening Assignment of
Mortgage or in the case where an Intervening Assignment of Mortgage is lost
after recordation in a public recording office, a copy of such Intervening
Assignment of Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Intervening Assignment of
Mortgage.
C-2
(vii) The original private mortgage insurance policy or certificate of
insurance, where required pursuant to the Agreement.
(viii) The original mortgagee policy of title insurance in the form
required by the Agreement or, if the original lender's title insurance
policy has not been issued, the preliminary report or irrevocable binder or
commitment to issue the same.
(ix) Any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage.
(x) For each Mortgage Loan which is secured by a residential long-term
lease, if any, a copy of the lease with evidence of recording indicated
thereon, or, if the lease is in the process of being recorded, a photocopy
of the lease, certified by an officer of the respective prior owner of such
Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to be a true
and correct copy of the lease transmitted for recordation.
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items to the extent required in the Underwriting Guidelines:
(i) The original hazard insurance policy and, if required by law,
flood insurance policy.
(ii) Fully executed residential loan application.
(iii) Fully executed Mortgage Loan closing statement (i.e., a Form
HUD-1) and any other truth-in-lending or real estate settlement procedure
forms required by law.
(iv) Verification of employment and income (if required pursuant to
the Underwriting Guidelines).
(v) Verification of acceptable evidence of source and amount of down
payment.
(vi) Credit report on the Mortgagor.
(vii) Residential appraisal report.
(viii) Photograph of the Mortgaged Property.
(ix) Survey of the Mortgaged Property, if required by the title
company or applicable law.
(x) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy
(i.e., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.).
C-3
(xi) All fully executed required disclosure statements required by
state and federal law.
(xii) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(xiii) Sales contract, if applicable.
(xiv) Evidence of payment of taxes and insurance premiums, insurance
claim files, correspondence, current and historical computerized data
files, and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage file and which are
required to document the Mortgage Loan or to service the Mortgage Loan.
(xv) Amortization schedule, if available.
(xvi) Payment history for any Mortgage Loan that has been closed for
more than 90 days.
(xvii) Fully executed power of attorney, if applicable.
In the event of a delay by the public recording office in returning any recorded
document, the Seller shall deliver to the Custodian, within 180 days of the
Closing Date, an Officer's Certificate which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay caused by the public recording office, (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, and (iv) specify the
date the applicable recorded document will be delivered to the Custodian. The
Seller shall be required to deliver to the Custodian the applicable recorded
document by the date specified in (iv) above.
C-4
EXHIBIT D
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
▇▇▇▇▇ Fargo Bank, N.A.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage Document Custody
In connection with the administration of the mortgages held by you as Custodian
under that certain Custodial Agreement, dated as of September 1, 2006 (the
"CUSTODIAL AGREEMENT"), among ▇▇▇▇▇ Fargo Bank, N.A., as custodian (the
"CUSTODIAN"), ▇▇▇▇▇ Asset Securitization, Inc., as Depositor (the "DEPOSITOR"),
and HSBC Bank USA, National Association, as the trustee (the "TRUSTEE"), the
[Master Servicer] [Servicer] hereby requests a release of the Mortgage File held
by you as Custodian with respect to the following described Mortgage Loan for
the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. The [Master Servicer] [Servicer] hereby certifies
that all amounts received in connection with the loan have been credited to the
[Custodial Account] [Distribution Account] pursuant to the Pooling Agreement.
2. Mortgage Loan foreclosed. The [Master Servicer] [Servicer] hereby certifies
that the above reference Mortgage Loan is or will be subject to a foreclosure
proceeding in accordance with the Pooling Agreement.
3. Mortgage Loan substituted. The [Master Servicer] [Servicer] hereby certifies
that a Qualified Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Pooling Agreement.
4. Mortgage Loan repurchased. The [Master Servicer] [Servicer] hereby certifies
that the Repurchase Amount has been credited to the Distribution Account
pursuant to the Pooling Agreement.
5. Other. [ - ]
The undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Pooling Agreement and will
be returned to you within ten days of our receipt of such Mortgage File, except
if the Mortgage Loan has been paid in full, repurchased or substituted for a
Qualified Substitute Mortgage Loan (in which case the Mortgage
D-1
File will be retained by us permanently) and except if the Mortgage Loan is
being foreclosed (in which case the Mortgage File will be returned when no
longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them in the
Custodial Agreement.
[ - ],
as [Master Servicer] [Servicer]
By:
------------------------------------
Name:
Title:
D-2
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE
____________________________
Date
Re: LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-6
CLASS [ - ] CERTIFICATES
Ladies and Gentlemen:
In connection with our disposition of the Luminent Mortgage Trust 2006-6
Mortgage Pass-Through Certificates, Series 2006-6 (the "Certificates"), we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act, (c)
to the extent we are disposing of the Class [R][RX] Certificate, we have no
knowledge the Transferee is not a Permitted Transferee and (d) no purpose of the
proposed disposition of the Class [R][RX] Certificate is to impede the
assessment or collection of tax.
Very truly yours,
[ - ]
By:
------------------------------------
Name:
Title:
E-1
EXHIBIT F-1
FORM OF NON-RULE 144A INVESTMENT LETTER
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS [_]
________________
(DATE)
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the captioned
securities (the "Purchased Securities"), the undersigned (the "Transferee")
hereby certifies and covenants to the transferor, the Depositor, the Master
Servicer, the Securities Administrator, the Trustee and the Trust Fund as
follows:
(a) Representations and Warranties. The Transferee represents and warrants:
(1) The Transferee is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which the Transferee is organized, is
authorized to invest in the Purchased Securities and to enter into this
Agreement, and has duly executed and delivered this Agreement.
(2) The Transferee is acquiring the Purchased Securities for its own
account as principal and not with a view to the distribution of the Purchased
Securities, in whole or in part, in violation of Section 5 of the Securities Act
of 1933, as amended (the "Act").
(3) The Transferee is an "Accredited Investor" as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Act.
(4) The Transferee has knowledge in financial and business matters and is
capable of evaluating the merits and risks of an investment in the Purchased
Securities; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risk of an investment in the Purchased
Securities and can afford a complete loss of such investment;
(5) The Transferee confirms that the Depositor has made available to the
Transferee the opportunity to ask questions of, and receive answers from, the
Depositor concerning the Depositor, the Trust Fund, the purchase by the
Transferee of the Purchased Securities and all
F-1-1
matters relating thereto, and to obtain additional information relating thereto
that the Depositor possesses or can acquire without unreasonable effort or
expense.
(b) Covenants. The Transferee covenants:
(1) The Transferee will not make a public offering of the Purchased
Securities, and will not reoffer or resell the Purchased Securities in a manner
that would render the issuance and sale of the Purchased Securities, whether
considered together with the resale or otherwise, a violation of the Act, or any
state securities or "Blue Sky" laws or require registration pursuant thereto;
(2) The Transferee agrees that, in its capacity as holder of the Purchased
Securities, it will assert no claim or interest in the Mortgage Loans by reason
of owning the Purchased Securities other than with respect to amounts that may
be properly and actually payable to the Transferee pursuant to the terms of the
Pooling Agreement and the securities; and
(3) If applicable, the Transferee will comply in all material respects with
respect to the Purchased Securities with applicable regulatory guidelines
relating to the ownership of mortgage derivative products.
(c) Transfer Restrictions.
(1) The Transferee understands that the Purchased Securities have not been
registered under the Act or registered or qualified under any state securities
laws and that no transfer may be made unless the Purchased Securities are
registered under the Act and under applicable state law or unless an exemption
from such registration is available. If so requested by the Trustee, the
Transferee and the transferor shall certify to the Depositor and the Trustee as
to the factual basis for the registration or qualification exemption relied
upon. The Transferee further understands that neither the Depositor, the Trustee
nor the Trust Fund is under any obligation to register the Purchased Securities
or make an exemption from such registration available.
(2) Any Securityholder desiring to effect a transfer shall, and does hereby
agree to, indemnify the Depositor and the Trustee against any liability that may
result if the transfer is not exempt under federal or applicable state
securities laws.
(3) The transfer of the Securities may be subject to additional
restrictions, as set forth in Section 9.02 of the Pooling Agreement.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling Agreement, dated as of
September 1, 2006, by and among ▇▇▇▇▇ Asset Securitization, Inc., as Depositor,
Maia Mortgage Finance Statutory Trust, as Seller, HSBC Bank USA, National
Association, as Trustee, and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator"), pursuant to which the Purchased Securities were issued.
IN WITNESS WHEREOF, the undersigned has caused this Investment Letter to be
executed by its duly authorized representative as of the day and year first
above written.
F-1-2
[TRANSFEREE]
By:
------------------------------------
Name:
Title:
F-1-3
EXHIBIT F-2
FORM OF RULE 144A INVESTMENT LETTER
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
CLASS [_]
________________
(DATE)
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the captioned
securities (the "Purchased Certificates"), the undersigned (the "Transferee")
hereby certifies and covenants to the transferor, ▇▇▇▇▇ Asset Securitization,
Inc., the Master Servicer, the Securities Administrator, the Trustee and the
Trust Fund as follows:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act") and has completed the form of certification to that
effect attached hereto as Annex A1 (if the Transferee is not a registered
investment company) or Annex A2 (if the Transferee is a registered investment
company). The Transferee is aware that the sale to it is being made in reliance
on Rule 144A.
2. The Transferee understands that the Purchased Certificates have not been
registered under the 1933 Act or registered or qualified under any state
securities laws and that no transfer may be made unless the Purchased
Certificates are registered under the 1933 Act and under applicable state law or
unless an exemption from such registration is available. The Transferee further
understands that neither ▇▇▇▇▇ Asset Securitization, Inc., the Master Servicer,
the Securities Administrator, the Trustee nor the Trust Fund is under any
obligation to register the Purchased Certificates or make an exemption from such
registration available.
3. The Transferee is acquiring the Purchased Certificates for its own
account or for the account of a "qualified institutional buyer" (as defined in
Rule 144A, a "QIB"), and understands that such Purchased Certificates may be
resold, pledged or transferred only (a) to a person reasonably believed to be
such a QIB that purchases for its own account or for the account of a QIB to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from registration
under the 1933 Act and under applicable state securities laws. In addition, such
transfer may be subject to additional restrictions, as set forth in Section 9.02
of the Pooling Agreement. By its execution of this agreement, the Transferee
agrees that it will not resell, pledge or transfer any of the Purchased
Certificates to anyone otherwise than in strict compliance with Rule 144A, or
F-2-1
pursuant to another exemption from registration under the 1933 Act and all
applicable state securities laws, and in strict compliance with the transfer
restrictions set forth in Section 9.02 of the Pooling Agreement. The Transferee
will not attempt to transfer any or all of the Purchased Certificates pursuant
to Rule 144A unless the Transferee offers and sells such Certificates only to
QIBs or to offerees or purchasers that the Transferee and any person acting on
behalf of the Transferee reasonably believe (as described in paragraph (d)(l) of
Rule 144A) is a QIB.
4. The Transferee has been furnished with all information that it requested
regarding (a) the Purchased Certificates and distributions thereon and (b) the
Pooling Agreement referred to below.
5. If applicable, the Transferee has complied, will comply in all material
respects with applicable regulatory guidelines relating to the ownership of
mortgage derivative products.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling Agreement, dated as of
September 1, 2006, by and among ▇▇▇▇▇ Asset Securitization, Inc., as Depositor,
Maia Mortgage Finance Statutory Trust, as Seller, HSBC Bank USA, National
Association, as Trustee, and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator") pursuant to which the Purchased Certificates were issued.
IN WITNESS WHEREOF, the undersigned has caused this Rule 144A Letter to be
executed by its duly authorized representative as of the day and year first
above written.
[TRANSFEREE]
By:
------------------------------------
Name:
Title:
F-2-2
ANNEX A1 TO EXHIBIT F-2
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Transferee.
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because (a) the Transferee owned and/or invested on
a discretionary basis at least $[ - ] in securities [Note to reviewer - the
amount in the previous blank must be at least $100,000,000 unless the Transferee
is a dealer, in which case the amount filled in the previous blank must be at
least $10,000,000.] (except for the excluded securities referred to in paragraph
3 below) as of [ - ] [specify a date on or since the end of the Transferee's
most recently ended fiscal year] (such amount being calculated in accordance
with Rule 144A) and (b) the Transferee meets the criteria listed in the category
marked below.
_____ Corporation, etc. The Transferee is an organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended,
a corporation (other than a bank as defined in Section 3(a)(2) of
the 1933 Act or a savings and loan association or other similar
institution referenced in Section 3(a)(5)(A) of the Act), a
partnership, or a Massachusetts or similar business trust.
_____ Bank. The Transferee (a) is a national bank or banking institution
as defined in Section 3(a)(2) of the 1933 Act and is organized
under the laws of a state, territory or the District of Columbia.
The business of the Transferee is substantially confined to banking
and is supervised by the appropriate state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements as of a date not more than 16 months preceding the date
of this certification in the case of a U.S. bank, and not more than
eighteen months preceding the date of this certification in the
case of a foreign bank or equivalent institution, a copy of which
financial statements is attached hereto.
_____ Savings and Loan. The Transferee is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution referenced in Section 3(a)(5)(A)
of the 1933 Act. The Transferee is supervised and examined by a
state or federal authority having supervisory authority over any
such institutions or is a foreign savings and loan association or
equivalent institution and has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements as of a date not more than 16 months preceding the date
of this certification in the case of a U.S. savings and loan
association or similar institution, and not more than eighteen
months preceding the date of this certification in the case of a
foreign savings and loan association or equivalent institution, a
copy of which financial statements is attached hereto.
F-2-3
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Certificates Exchange Act of 1934, as amended
(the "1934 Act").
_____ Insurance Company. The Transferee is an insurance company as
defined in Section 2(13) of the 1933 Act, whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which
is subject to supervision by the insurance commissioner or a
similar official or agency of a state, territory or the District of
Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Certificate
Act of 1974, as amended.
_____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as amended.
_____ Other. The Transferee qualifies as a "qualified institutional
buyer" as defined in Rule 144A on the basis of facts other than
those listed in any of the entries above. If this response is
marked, the Transferee must certify on additional pages, to be
attached to this certification, to facts that satisfy the Servicer
that the Transferee is a "qualified institutional buyer" as defined
in Rule 144A.
3. The term "securities" as used herein does not include (a) securities of
issuers that are affiliated with the Transferee, (b) securities constituting the
whole or part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (c) bank deposit notes and certificates of deposit,
(d) loan participations, (e) repurchase agreements, (f) securities owned but
subject to a repurchase agreement and (g) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee and did not include any of the
securities referred to in the preceding paragraph. Further, in determining such
aggregate amount, the Transferee may have included securities owned by
subsidiaries of the Transferee, but only if such subsidiaries are consolidated
with the Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a reporting
company under the 1934 Act.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Purchased
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be made in reliance on Rule
144A.
F-2-4
6. Will the Transferee be purchasing the _____ _____
Purchased Certificates only YES NO
for the Transferee's own account?
If the answer to the foregoing question is "NO", the Transferee agrees
that, in connection with any purchase of securities sold to the Transferee for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Transferee will only purchase for the account of a third party
that at the time is a "qualified institutional buyer" within the meaning of Rule
144A. In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently meets
the definition of "qualified institutional buyer" set forth in Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Purchased
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized representative this ____ day of ___________,
______.
Print Name of Transferee
By:
------------------------------------
F-2-5
ANNEX A2 TO EXHIBIT F-2
REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the entity purchasing the Purchased
Certificates (the "Transferee") or, if the Transferee is part of a Family of
Investment Companies (as defined in paragraph 3 below), is an officer of the
related investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because (a) the Transferee is an investment company
(a "Registered Investment Company") registered under the Investment Company Act
of 1940, as amended (the "1940 Act") and (b) as marked below, the Transferee
alone, or the Transferee's Family of Investment Companies, owned at least $[ - ]
[Note to reviewer - the amount in the previous blank must be at least
$100,000,000] in securities (other than the excluded securities referred to in
paragraph 4 below) as of [ - ] [specify a date on or since the end of the
Transferee's most recently ended fiscal year]. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities to the Transferee or the
Transferee's Family of Investment Companies was used.
_____ The Transferee owned $____________ in securities (other than the
excluded securities referred to in paragraph 4 below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $____________ in securities (other than the
excluded securities referred to in paragraph 4 below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more Registered Investment Companies except for a unit investment trust whose
assets consist solely of shares of one or more Registered Investment Companies
(provided that each series of a "series company," as defined in Rule 18f-2 under
the 1940 Act, shall be deemed to be a separate investment company) that have the
same investment adviser (or, in the case of a unit investment trust, the same
depositor) or investment advisers (or depositors) that are affiliated (by virtue
of being majority-owned subsidiaries of the same parent or because one
investment adviser is a majority-owned subsidiary of the other).
4. The term "securities" as used herein does not include (a) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (b) bank deposit notes and certificates of
deposit, (c) loan participations, (d) repurchase agreements, (e) securities
owned but subject to a repurchase agreement and (f) currency, interest rate and
commodity swaps.
F-2-6
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Purchased Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized representative this ____ of ____________,
______.
[Print Name of Transferee or Adviser]
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
[Print Name of Transferee]
Date:
-------------------------------
F-2-7
EXHIBIT G
FORM OF BENEFIT PLAN AFFIDAVIT
Re: LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-6
ERISA-RESTRICTED CERTIFICATES
STATE OF [_________] )
)ss:
COUNTY/CITY OF [_______] )
Under penalties of perjury, I, the undersigned, declare that, to the best
of my knowledge and belief, the following representations are true, correct, and
complete.
1. That I am a duly authorized officer of [Organization], a [State]
corporation (the "Purchaser"), whose taxpayer identification number is
[____________], and on behalf of which I have the authority to make this
affidavit.
2. That the Purchaser is acquiring any of the ERISA-Restricted
Certificates, each representing an interest in the Trust Fund, for certain
assets of which one or more real estate mortgage investment conduit
("REMIC") elections are to be made under Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code").
3. The Purchaser either:
(i) is not an employee benefit plan or arrangement including a
collective investment fund (or insurance company general account) or
individual retirement account that is subject to Title I of ERISA or
Section 4975 of the Code (each, a "Plan") nor any Person acting for or
on behalf of a Plan or using the assets of a Plan;
(ii) in case of an ERISA-Restricted Certificate other than a
Class C, Class P or Residual Certificate, is an insurance company and
(A) the Purchaser is acquiring the Certificates with funds held in an
"insurance company general account" (as defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60"), as
published in 60 Fed. Reg. 35925 (July 12, 1995)) and (B) the
acquisition and holding of the Certificates are covered under Sections
I and III of PTCE 95-60; or
(iii) in the case of an ERISA-Restricted Certificate other than a
Residual Certificate, has provided an Opinion of Counsel obtained at
the Transferee's expense, satisfactory to the Securities
Administrator, an Opinion of Counsel with respect to this Benefit Plan
Affidavit is an opinion of counsel to the
G-1
effect that the proposed transfer to, or the holding of such
Certificate by, a Plan, or any church plan, governmental plan or other
arrangement that is subject to any federal, state or local law that is
substantially similar to the foregoing provisions of ERISA or the Code
("Similar Law") or any person acting for, on behalf of, or with assets
of, a Plan (or a church plan, government plan or other arrangement
described above) will not (a) constitute or result in, a non-exempt
prohibited transaction under Title I of ERISA or Section 4975 of the
Code or a violation of Similar Law and will not subject the Trustee,
the Depositor, the Securities Administrator, the Master Servicer or
the Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in the Pooling Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Pooling Agreement, dated as of September
1, 2006, by and among ▇▇▇▇▇ Asset Securitization, Inc., as Depositor, Maia
Mortgage Finance Statutory Trust, as Seller, HSBC Bank USA, National
Association, as Trustee, and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator").
[SIGNATURE PAGE FOLLOWS]
G-2
[Purchaser]
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
G-3
EXHIBIT H
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 9.02
Luminent Mortgage Trust ▇▇▇▇-▇ (▇▇▇ "▇▇▇▇▇ ▇▇▇▇")
Mortgage Pass-Through Certificates, Series 2006-6
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class [R][RX] Certificate (the
"Residual Certificate") issued pursuant to the Pooling Agreement, dated
September 1, 2006 (the "Agreement"), among ▇▇▇▇▇ Asset Securitization, Inc., as
Depositor, Maia Mortgage Finance Statutory Trust, as Seller, ▇▇▇▇▇ Fargo Bank,
N.A. as Securities Administrator and Master Servicer, and HSBC Bank USA,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date of
the transfer, a Permitted Transferee. The Transferee is acquiring the Residual
Certificate either (i) for its own account or (ii) as nominee, trustee or agent
for another Person who is a Permitted Transferee and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a
H-1
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 9.02(f) of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 9.02(f) of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due,
and it intends to do so in the future.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is (i) a U.S. Person as defined in Code Section
7701(a)(30) or (ii) (A) the Transferee holds the Residual Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Trustee with an effective Internal Revenue
Service Form W-8ECI (or successor thereto) or (B) the Transferee has delivered
to both the transferor and the Trustee an Opinion of Counsel from a
nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of the Residual Certificate will not be
disregarded for federal income tax purposes.
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
H-2
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
15. The Transferee understands that it may incur tax liabilities with
respect to the Residual Certificate in excess of cash flows generated thereby.
16. The Transferee intends to pay taxes associated with holding the
Residual Certificate as such taxes become due.
* * *
H-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
----------------------------------
Print Name of Transferee
By
-------------------------------
Name:
Title:
Personally appeared before me the above-named ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this ____ day of _____________________, ____
------------------------------------------------------
NOTARY PUBLIC
My Commission expires the ____ day of ________, _____.
H-4
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
[_] The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
[_] The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's two
fiscal years preceding the year of the transfer, the Transferee had
gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of
$100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and
Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to acquire
the Residual Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
H-5
EXHIBIT I
ADDITIONAL FORM 10-D DISCLOSURE
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
ITEM 1: DISTRIBUTION AND POOL
PERFORMANCE INFORMATION
Information included in the Monthly Servicer
Statement Master Servicer
Securities Administrator
Any information required by 1121 which Depositor
is NOT included on the Monthly Statement
ITEM 2: LEGAL PROCEEDINGS
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceedings known to be contemplated by
governmental authorities:
o Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
o Sponsor (Seller) Seller (if a party to the Pooling
Agreement) or Depositor
o Depositor Depositor
o Trustee Trustee
o Securities Administrator Securities Administrator
o Master Servicer Master Servicer
o Custodian Custodian
o 1110(b) Originator Depositor
o Any 1108(a)(2) Servicer (other than Servicer
the Master Servicer or Securities
Administrator)
o Any other party contemplated by Depositor
1100(d)(1)
ITEM 3: SALE OF SECURITIES AND USE OF Depositor
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.
I-1
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
ITEM 4: DEFAULTS UPON SENIOR SECURITIES Securities Administrator
Trustee
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)
ITEM 5: SUBMISSION OF MATTERS TO A VOTE Securities Administrator
OF SECURITY HOLDERS Trustee
Information from Item 4 of Part II of
Form 10-Q
ITEM 6: SIGNIFICANT OBLIGORS OF POOL Depositor
ASSETS
Item 1112(b) - Significant Obligor
Financial Information*
* 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.
ITEM 7: SIGNIFICANT ENHANCEMENT
PROVIDER INFORMATION
Item 1114(b)(2) - Credit Enhancement
Provider Financial Information*
o Determining applicable disclosure Depositor
threshold
o Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
Item 1115(b) - Derivative Counterparty
Financial Information*
o Determining current maximum Depositor
probable exposure
o Determining current significance Depositor
percentage
o Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
* 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.
I-2
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
ITEM 8: OTHER INFORMATION Any party responsible for the
applicable Form 8-K Disclosure item
Disclose any information required to be
reported on Form 8-K during the period
covered by the Form 10-D but not
reported
ITEM 9: EXHIBITS
Monthly Statement to Certificateholders Securities Administrator
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
I-3
EXHIBIT J
ADDITIONAL FORM 10-K DISCLOSURE
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
---------------------------------------- --------------------------------------
ITEM 1B: UNRESOLVED STAFF COMMENTS Depositor
ITEM 9B: OTHER INFORMATION Any party responsible for disclosure
Disclose any information required to be items on Form 8-K
reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not
reported
ITEM 15: EXHIBITS, FINANCIAL STATEMENT Securities Administrator
SCHEDULES Depositor
REG AB ITEM 1112(b): SIGNIFICANT
OBLIGORS OF POOL ASSETS
Significant Obligor Financial Depositor
Information*
* 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.
REG AB ITEM 1114(b)(2): CREDIT
ENHANCEMENT PROVIDER FINANCIAL
INFORMATION
o Determining applicable disclosure Depositor
threshold
o Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
* 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.
REG AB ITEM 1115(b): DERIVATIVE
COUNTERPARTY FINANCIAL INFORMATION
o Determining current maximum Depositor
probable exposure
o Determining current significance Depositor
percentage
o Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
* 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.
J-1
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
---------------------------------------- --------------------------------------
REG AB ITEM 1117: LEGAL PROCEEDINGS
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceedings known to be contemplated by
governmental authorities:
o Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
o Sponsor (Seller) Seller (if a party to the Pooling
Agreement) or Depositor
o Depositor Depositor
o Trustee Trustee
o Securities Administrator Securities Administrator
o Master Servicer Master Servicer
o Custodian Custodian
o 1110(b) Originator Depositor
o Any 1108(a)(2) Servicer (other than Servicer
the Master Servicer or Securities
Administrator)
o Any other party contemplated by Depositor
1100(d)(1)
REG AB ITEM 1119: AFFILIATIONS AND
RELATIONSHIPS
Whether (a) the Sponsor (Seller), Depositor as to (a)
Depositor or Issuing Entity is an Sponsor/Seller as to (a)
affiliate of the following parties, and
(b) to the extent known and material,
any of the following parties are
affiliated with one another:
o Master Servicer Master Servicer
o Securities Administrator Securities Administrator
o Trustee Trustee
o Any other 1108(a)(3) servicer Servicer
o Any 1110 Originator Depositor/Sponsor
o Any 1112(b) Significant Obligor Depositor/Sponsor
o Any 1114 Credit Enhancement Depositor/Sponsor
Provider
o Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
o Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any "outside the Depositor as to (a)
ordinary course business arrangements" Sponsor/Seller as to (a)
other than would be obtained in an arm's
length transaction between (a) the
Sponsor (Seller), Depositor or Issuing
Entity on the one hand, and (b) any of
the following parties (or their
affiliates) on the other hand, that
exist currently or within the past two
years and that are material to a
Certificateholder's understanding of the
Certificates:
J-2
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------------------------------- -------------------------------------
o Master Servicer Master Servicer
o Securities Administrator Securities Administrator
o Trustee Depositor/Sponsor
o Any other 1108(a)(3) servicer Servicer
o Any 1110 Originator Depositor/Sponsor
o Any 1112(b) Significant Obligor Depositor/Sponsor
o Any 1114 Credit Enhancement Depositor/Sponsor
Provider
Depositor/Sponsor
o Any 1115 Derivate Counterparty
Provider
o Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any specific Depositor as to (a)
relationships involving the transaction Sponsor/Seller as to (a)
or the pool assets between (a) the
Sponsor (Seller), Depositor or Issuing
Entity on the one hand, and (b) any of
the following parties (or their
affiliates) on the other hand, that
exist currently or within the past two
years and that are material:
o Master Servicer Master Servicer
o Securities Administrator Securities Administrator
o Trustee Depositor/Sponsor
o Any other 1108(a)(3) servicer Servicer
o Any 1110 Originator Depositor/Sponsor
o Any 1112(b) Significant Obligor Depositor/Sponsor
o Any 1114 Credit Enhancement Depositor/Sponsor
Provider
o Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
o Any other 1101(d)(1) material party Depositor/Sponsor
J-3
EXHIBIT K
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
ITEM 1.01- ENTRY INTO A MATERIAL All parties
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
ITEM 1.02- TERMINATION OF A MATERIAL All parties
DEFINITIVE AGREEMENT
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.
ITEM 1.03- BANKRUPTCY OR RECEIVERSHIP Depositor
Disclosure is required regarding the
bankruptcy or receivership, with respect
to any of the following:
o Sponsor (Seller) Depositor/Sponsor (Seller)
o Depositor Depositor
o Master Servicer Master Servicer
o Affiliated Servicer Servicer
o Other Servicer servicing 20% or Servicer
more of the pool assets at the time
of the report
o Other material servicers Servicer
o Trustee Trustee
o Securities Administrator Securities Administrator
o Significant Obligor Depositor
o Credit Enhancer (10% or more) Depositor
o Derivative Counterparty Depositor
o Custodian Custodian
K-1
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
ITEM 2.04- TRIGGERING EVENTS THAT Depositor
ACCELERATE OR INCREASE A DIRECT Master Servicer
FINANCIAL OBLIGATION OR AN OBLIGATION Securities Administrator
UNDER AN OFF-BALANCE SHEET ARRANGEMENT
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
the certificateholders.
ITEM 3.03- MATERIAL MODIFICATION TO Securities Administrator
RIGHTS OF SECURITY HOLDERS Trustee
Depositor
Disclosure is required of any material
modification to documents defining the
rights of Certificateholders, including
the Pooling Agreement.
ITEM 5.03- AMENDMENTS OF ARTICLES OF Depositor
INCORPORATION OR BYLAWS; CHANGE OF
FISCAL YEAR
Disclosure is required of any amendment
"to the governing documents of the
issuing entity".
ITEM 6.01- ABS INFORMATIONAL AND Depositor
COMPUTATIONAL MATERIAL
ITEM 6.02- CHANGE OF SERVICER OR Master Servicer/Securities
SECURITIES ADMINISTRATOR Administrator/Depositor/
Servicer/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.
Reg AB disclosure about any new servicer Servicer/Master Servicer/Depositor
or master servicer is also required.
Reg AB disclosure about any new Trustee Trustee
is also required.
ITEM 6.03- CHANGE IN CREDIT ENHANCEMENT Depositor/Securities
OR EXTERNAL SUPPORT Administrator/Trustee
Covers termination of any enhancement in
K-2
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
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.
Reg AB disclosure about any new Depositor
enhancement provider is also required.
ITEM 6.04- FAILURE TO MAKE A REQUIRED Securities Administrator
DISTRIBUTION Trustee
ITEM 6.05- SECURITIES ACT UPDATING Depositor
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.
If there are any new servicers or Depositor
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.
ITEM 7.01- REG FD DISCLOSURE All parties
ITEM 8.01- OTHER EVENTS Depositor
Any event, with respect to which
information is not otherwise called for
in Form 8-K, that the registrant deems
of importance to certificateholders.
ITEM 9.01- FINANCIAL STATEMENTS AND Responsible party for
EXHIBITS reporting/disclosing the financial
statement or exhibit
K-3
EXHIBIT L
ADDITIONAL DISCLOSURE NOTIFICATION
▇▇▇▇▇ Fargo Bank, N.A. as Securities Administrator
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ Asset Securitization, Inc., as Depositor
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [ - ]
Attn: Corporate Trust Services - LUMINENT MORTGAGE TRUST 2006-6 -SEC REPORT
PROCESSING
RE: **Additional Form [_] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section 4.05 of the Pooling Agreement, dated as of
September 1, 2006, by and among ▇▇▇▇▇ Asset Securitization, Inc., as depositor
(the "Depositor"), Maia Mortgage Finance Statutory Trust, as Seller (the
"Seller"), HSBC Bank USA, National Association, as trustee (the "Trustee"), and
▇▇▇▇▇ Fargo Bank, N.A., in its dual capacities as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). The
Undersigned, as [_], hereby notifies you that certain events have come to our
attention that [will][may] need to be disclosed on Form [_].
Description of Additional Form [_] Disclosure:
List of Any Attachments hereto to be included in the Additional Form [_]
Disclosure:
Any inquiries related to this notification should be directed to [_], phone
number: [_]; email address: [_].
[NAME OF PARTY]
as [role]
By:
----------------------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF SCHEDULE TO INTEREST RATE SWAP AGREEMENT
(MULTICURRENCY - CROSS BORDER)
[ISDA(R) LOGO]
International Swaps and Derivatives Association, Inc.
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of September 28, 2006
between
▇▇▇▇▇ FARGO BANK, N.A., NOT IN ITS
BARCLAYS BANK PLC INDIVIDUAL CAPACITY BUT SOLELY AS THE
SUPPLEMENTAL INTEREST TRUST TRUSTEE OF
THE SUPPLEMENTAL INTEREST TRUST OF THE
LUMINENT MORTGAGE TRUST 2006-6 ON BEHALF
OF THE CLASS A-2A CERTIFICATEHOLDERS
--------------------------------------- ----------------------------------------
("Party A") ("Party B")
PART 1
TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
M-1-1
Section 5(b)(iv), Not Applicable
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) CERTAIN EVENTS OF DEFAULT. The following Events of Default will apply to
the parties as specified below, and the definition of "Event of Default" in
Section 14 is deemed to be modified accordingly:
Section 5(a)(i) (Failure to Pay or Deliver) will apply to Party A and
Party B.
Section 5(a)(ii) (Breach of Agreement) will apply to Party A and will
not apply to Party B.
Section 5(a)(iii) (Credit Support Default) will apply to Party A and
will not apply to Party B.
Section 5(a)(iv) (Misrepresentation) will apply to Party A and will
not apply to Party B.
Section 5(a)(v) (Default under Specified Transaction) will not apply
to Party A or Party B.
Section 5(a)(vi) (Cross Default) will not apply to Party A or Party B.
Section 5(a)(vii)(2) (Bankruptcy) will apply to Party A and will not
apply to Party B.
Section 5(a)(viii) (Merger without Assumption) will apply to Party A
and will not apply to Party B.
(d) TERMINATION EVENTS. The following Termination Events will apply to the
parties as specified below:
Section 5(b)(i) (Illegality) will apply to Party A and Party B.
Section 5(b)(ii) (Tax Event) will apply to Party A and Party B.
Section 5(b)(iii) (Tax Event upon Merger) will apply to Party A and
will not apply to Party B; provided for clarification that Party B may
be a Burdened Party for purposes of this provision.
Section 5(b)(iv) (Credit Event upon Merger) will not apply to Party A
or Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) of this
Agreement will not apply to Party A and will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) ADDITIONAL TERMINATION EVENTS. The following Additional Termination Events
will apply, with the Affected Party or Parties designated for each
Additional Termination Event as below :
(i) Party A fails to comply with the downgrade provisions or the
Regulation AB provisions set forth in Part 5 of this Schedule (for all
purposes of this Agreement, Party A shall be the sole Affected Party
with respect to the occurrence of an Additional Termination Event
specified in this Part 1(h)(i)); and
(ii) Any amendment, supplement or other modification to the Pooling
Agreement, dated as of September 1, 2006, among ▇▇▇▇▇ Asset
Securitization, Inc., as depositor, Maia Mortgage Finance Statutory
Trust, as Seller, ▇▇▇▇▇ Fargo Bank, N.A., as securities administrator
and master servicer, and HSBC Bank USA, National Association, as
trustee (the "Pooling Agreement"), is made without the prior written
consent of Party A with the result that such amendment, supplement or
other modification would (a) materially and adversely affect any
M-1-2
of Party A's rights or obligations under this Agreement or (b)
materially and adversely impact the ability of Party B to fully
perform any of Party B's obligations under this Agreement (in
connection with such Additional Termination Event, Party B shall be
the sole Affected Party).
PART 2
TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this Agreement,
Party A will make the following representation and Party B will make the
following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness
of any document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of this Agreement, provided that
it shall not be a breach of this representation where reliance is placed on
clause (ii) and the other party does not deliver a form or document under
Section 4(a)(iii) of this Agreement by reason of material prejudice to its
legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this Agreement,
Party A and Party B make the representations specified below, if any:
(i) With respect to payments made to Party A which are not effectively
connected to the U.S., Party A is a non-U.S. branch of a foreign
person for U.S. federal income tax purposes, and with respect to
payments made to Party A which are effectively connected to the U.S.,
each payment received or to be received by Party A in connection with
this Agreement will be effectively connected with its conduct of a
trade or business in the U.S.
(ii) Party B is a common law trust formed under the laws of the State of
New York.
M-1-3
PART 3
AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
PARTY
REQUIRED TO
DELIVER DATE BY WHICH TO BE
DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED
----------- -------------------------------------- -------------------------
Party A and Any form or document required or Upon execution and then
Party B reasonably requested to allow the promptly upon reasonable
other party to make payments under the demand by the other
Agreement without any deduction or party.
withholding for or on account of any
Tax, or with such deduction or
withholding at a reduced rate.
(b) Other documents to be delivered are:
PARTY
REQUIRED DATE BY WHICH COVERED BY
TO DELIVER TO BE SECTION 3(D)
DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED REPRESENTATION
----------- --------------------------------- ------------- --------------
Party B Certified copy of the Board of Concurrently Yes
equivalent authorizing execution and
documentation) which sets forth delivery of
the authority of each signatory this
to this Agreement and each Credit Agreement.
Support Document (if any) signing
on its behalf and the authority
of such party to enter into
Transactions contemplated and
performance of its obligations
hereunder.
Party A Incumbency Certificate (or, if Concurrently Yes
and Party B available the current authorized with the
signature book or equivalent execution and
authorizing documentation) delivery of
specifying the names, titles, this
authority and specimen signatures Agreement
of the persons authorized to unless
execute this Agreement which sets previously
forth the specimen signatures of delivered and
each signatory to this Agreement, still in full
each Confirmation and each Credit force and
Support Document (if any) signing effect.
on its behalf.
Party A Opinions of counsel of Party A Concurrently Yes
reasonably satisfactory to Party with the
B. execution and
delivery of
the
confirmation.
M-1-4
Party B Opinions of counsel of Party B Concurrently No
reasonably satisfactory to Party with the
A. execution and
delivery of
the
confirmation.
Party B An executed copy of the Pooling Within 30 No
Agreement. days after
the date of
this
Agreement.
PART 4.
MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For the purposes of Section 12(a) of this Agreement:
Party A:
Addresses for notices to Party A under Sections 5 or 6 (other than notices
under Section 5(a)(i)) shall be sent to:
Address: 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇(▇▇) ▇▇▇ ▇▇▇▇▇
Phone: ▇▇(▇▇) ▇▇▇ ▇▇▇▇▇
All other notices to Party A shall be sent directly to the Office through
which Party A is acting for the relevant Transaction, using the address and
contact particulars specified in the Confirmation of that Transaction or
otherwise notified.
Party B:
Address: ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager - Luminent 2006-6
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 410.715.2380
(b) PROCESS AGENT. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not Applicable.
Party B appoints as its Process Agent: Not Applicable.
(c) OFFICES. With respect to Party A only, the provisions of Section 10(a) will
apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
M-1-5
Party A is a Multibranch Party and may act through its London and New York
Offices.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Documents:
(a) any ISDA Credit Support Annex hereto (including supplementary
"Paragraph 13 - Elections & Variables") shall constitute a
"Credit Support Document" in relation to Party A with respect to
all of the obligations of Party A and for all purposes of this
Agreement and (b) any guaranty furnished by Party A in accordance
with this Agreement shall constitute a "Credit Support Document"
in relation to Party A with respect to the related obligations of
Party A and for all purposes of this Agreement.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: Not Applicable,
unless Party A has a third party guarantee its obligations under this
Agreement in order to remedy a Rating Event, in which event such person
shall be a Credit Support Provider.
Credit Support Provider means in relation to Party B: Not Applicable.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine other than New York General Obligations Law Sections
5-1401 and 5-1402).
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will apply to all Transactions (in each case starting from the date of this
Agreement).
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement, provided that Party B shall not be deemed to have any Affiliates
for purposes of this Agreement, including for purposes of Section 6(b)(ii)
of the Master Agreement.
(k) JURISDICTION. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-", and (ii) deleting
the final paragraph thereof.
(l) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Agreement, any Transaction or
any Credit Support Document. Each party certifies (i) that no
representative, agent or attorney of the other party or any Credit Support
Provider has represented, expressly or otherwise, that such other party
would not, in the event of such a suit, action or proceeding, seek to
enforce the foregoing waiver and (ii) acknowledges that it and the other
party have been induced to enter into this Agreement and Transaction and
provide for any Credit Support Document, as applicable, by, among other
things, the mutual waivers and certifications in this Section.
(m) CONSENT TO RECORDING. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties
and their Affiliates in connection with this Agreement or any potential
transaction and (ii) if applicable, agrees to obtain any necessary consent
of, and give notice of such recording to, such personnel of it and its
Affiliates.
M-1-6
(n) SEVERABILITY. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall
be held to be illegal, invalid or unenforceable (in whole or in part) for
any reason, the remaining terms, provisions, covenants and conditions
hereof shall continue in full force and effect as if this Agreement had
been executed with the illegal, invalid or unenforceable portion
eliminated, so long as this Agreement as so modified continues to express,
without material change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or
expectations of the parties to this Agreement.
The parties shall endeavor to engage in good faith negotiations to replace
any illegal, invalid or unenforceable term, provision, covenant or
condition with a valid or enforceable term, provision, covenant or
condition, the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable term, provision, covenant or
condition.
PART 5.
OTHER PROVISIONS.
(a) DOWNGRADE PROVISIONS.
1. Ratings Downgrade Event. It shall be a "Ratings Downgrade Event" if at
any time:
(i) with respect to Moody's, if Party A has only a long-term rating by
Moody's, Party A fails to have a long-term senior, unsecured debt
obligation rating, credit rating or other similar rating (as the case
may be, the "Long-Term Rating") of at least "A1" by Moody's (or has a
Long-Term Rating of "A1" on negative credit watch by Moody's) or, if
Party A has both a Long Term Rating and a short-term senior, unsecured
debt obligation rating, credit rating or other similar rating (as the
case may be, the "Short-Term Rating"), it will be a Ratings Downgrade
Event if at any time Party A fails to have a Long-Term Rating of at
least "A2" by Moody's and a short-term rating of at least "P-1" by
Moody's (and, in each case, such rating is not on negative credit
watch by Moody's); or
(ii) with respect to S&P, Party A fails to have a Short-Term Rating of at
least "A-1" by S&P or (ii) if Party A does not have a Short-Term
Rating by S&P, Party A fails to have a Long-Term Rating of at least
"A+" by S & P;
the foregoing being the "Approved Ratings Threshold."
If a Ratings Downgrade Event occurs, then, within ten (10) Business Days
following the Ratings Downgrade Event (unless, within ten (10) Business
Days of such Ratings Event, each of Standard and Poor's, a Division of
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), Fitch Ratings ("Fitch") and ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") (each a "Rating Agency") has
reconfirmed the rating of the Class A-2A Certificates which was in effect
immediately prior to such Ratings Event), Party A shall, at its own
expense, take one of the following four actions:
(a) Replace Itself: Post collateral pursuant to clause (c) below and
use its good faith efforts to find third party that meets or exceeds
the Approved Ratings Threshold and that is acceptable to Party B,
which acceptance, subject to the Rating Agency Condition, shall not be
unreasonably withheld, to whom all of Party A's interests and
obligations under this Agreement shall be transferred at no cost to
Party B, and following which Party A shall be released from all
further rights and obligations under this Agreement;
M-1-7
(b) Obtain a guaranty: Obtain a guaranty, subject to Party B's
consent and the Rating Agency Condition and at Party A's expense, of
Party A's obligations under this Agreement and any Transaction from a
third party that meets or exceeds the Approved Ratings Threshold, in
form and substance satisfactory to Party B and the Rating Agencies;
(c) Post Eligible Collateral: Post collateral of such types, in
such amounts and at such times as are sufficient to satisfy the Rating
Agency Condition pursuant to a security agreement with Party B in the
form of a 1994 ISDA Credit Support Annex (a "Credit Support Annex")
satisfactory to Party B and the Rating Agencies and have counsel
furnish a legal opinion as to such Credit Support Annex in form and
substance satisfactory to Party B and the Rating Agencies, all at
Party A's expense; or
(d) Other Arrangement with Ratings Agency Approval: Subject to
the approval of Party B, establish any other arrangement satisfactory
to the Rating Agencies which will be sufficient to restore the
immediately prior ratings of the Class A-2A Certificates.
If Party A has failed to take one of the aforementioned actions within ten (10)
Business Days of the Ratings Downgrade Event, then, at the option of Party B,
such failure shall constitute an Additional Termination Event with Party A as
the sole Affected Party.
For the avoidance of doubt, both parties agree that Party A shall only be
required to post collateral pursuant to the terms of the CSA for the period (the
"Collateral Requirement Period") during which Party A's Ratings Downgrade Event
is continuing or until a replacement or guarantor, meeting the requirements set
forth above, is in place. Once the Collateral Requirement Period has ended,
Party B's custodian shall return any such collateral to Party A as soon as
reasonably practicable and to the extent such collateral has not already been
applied in accordance with this Agreement, including the Credit Support Annex
2. S&P Substitution Event. It shall also be a "S&P Substitution Event" if Party
A has a Long-Term Rating of less than "BBB-" or a Short-Term Rating of less than
"A-3," if applicable, by S&P. In such case, Party A must within 10 days from
such S&P Substitution Event (while collateralizing any exposure of Party B in
accordance with clause (1)(c) above) (a) transfer this Agreement and any and all
Transactions hereunder at Party A's sole cost and expense, in whole, but not in
part, to a third party that that meets or exceeds the Approved Ratings
Threshold, subject to satisfaction of the Rating Agency Condition and the
consent of Party B or (b) obtain a guaranty, subject to Party B's consent and
the Rating Agency Condition and at Party A's expense, of Party A's obligations
under this Agreement and any Transaction from a third party that meets or
exceeds the Approved Ratings Threshold, in form and substance satisfactory to
Party B and the Rating Agencies. Failure to comply with this provision shall be
an Additional Termination Event with Party A as the sole Affected Party. or
3. Moody's Guaranty or Substitution Event. If Moody's lowers Party A's Long-Term
Rating to or below "Baa1" or Party A's Short-Term Rating to or below "P-3",
Party A shall take either of the actions specified under (a) or (b) directly
below (while in the interim period before the completion of such action posting
collateral in accordance with clause (1)(c) above):
(a) Replace Itself: Use its good faith efforts to find third party that
meets or exceeds the Approved Ratings Threshold and that is acceptable to
Party B, which acceptance, subject to the Rating Agency Condition, shall
not be unreasonably withheld, to whom all of Party A's interests and
obligations under this Agreement shall be transferred at no cost to Party
B, and following which Party A shall be released from all further rights
and obligations under this Agreement; or
M-1-8
(b) Obtain a Guaranty: Obtain a guaranty, subject to Party B's consent and
the Rating Agency Condition and at Party A's expense, of Party A's
obligations under this Agreement and any Transaction from a third party
that meets or exceeds the Approved Ratings Threshold, in form and substance
satisfactory to Party B and the Rating Agencies
"Rating Agency Condition" means, with respect to any particular proposed act or
omission to act hereunder that the party acting or failing to act must consult
with any of the Rating Agencies then providing a rating of the Class A-2A
Certificates and receive from the Rating Agencies a prior written confirmation
that the proposed action or inaction would not cause a downgrade, qualification
or withdrawal of the then-current rating of the Class A-2A Certificates.
(b) Section 3(a) of this Agreement is hereby amended to include the following
additional representations after paragraph 3(a)(v):
(VI) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract participant" as
defined in section 1a(12) of the U.S. Commodity Exchange Act.
(VII) RELATIONSHIP BETWEEN PARTY A AND PARTY B. Subject to the provisions of
Part 5(g), each of Party A and Party B will be deemed to represent to the other
on the date on which it enters into a Transaction or an amendment thereof that
(absent a written agreement between Party A and Party B that expressly imposes
affirmative obligations to the contrary for that Transaction):
(1) PRINCIPAL. It is acting as principal and not as agent when entering into
this Agreement and each Transaction.
(2) NON-RELIANCE. Party A is acting for its own account and the Supplemental
Interest Trust Trustee (the "Trustee") is acting on behalf of the
Supplemental Interest Trust under the Pooling Agreement and has been
directed to enter into this Agreement pursuant to the Pooling Agreement.
Each party has made its own independent decisions to enter into this
Agreement and the Transaction and as to whether this Agreement and the
Transaction is appropriate or proper for it based upon its own judgment and
upon advice from such advisors as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into this Agreement or
the Transaction; it being understood that information and explanations
related to the terms and conditions of a Transaction shall not be
considered investment advice or a recommendation to enter into the
Transaction. No communication (written or oral) received from the other
party shall be deemed to be an assurance or guarantee as to the expected
results of the Transaction.
(3) EVALUATION AND UNDERSTANDING. It is capable of evaluating and understanding
(on its own behalf or through independent professional advice), and
understands and accepts, the terms, conditions and risks of this Agreement
and each Transaction hereunder. It is also capable of assuming, and
assumes, all financial and other risks of this Agreement and each
Transaction hereunder.
(4) STATUS OF PARTIES. The other party is not acting as a fiduciary or an
advisor for it in respect of that Transaction.
(c) SECTION 1(C). For purposes of Section 1(c) of the Agreement, the parties
intend that there will be only one Transaction and its related
Confirmation, which shall be the sole Transaction and Confirmation under
the Agreement.
M-1-9
(d) TRANSFER. Neither Party A nor Party B is permitted to assign, novate or
transfer (whether by way of security or otherwise) as a whole or in part
any of its rights, obligations or interests under this Agreement or any
Transaction without the prior written consent of the other party; PROVIDED,
HOWEVER, that (i) Party A may make such a transfer or assignment of this
Agreement pursuant to a consolidation or amalgamation with, or merger with
or into, or transfer of substantially all of its assets to, another entity,
or an incorporation, reincorporation or reconstitution, and (ii) Party A
may transfer or assign this Agreement to any of Party A's Affiliates (any
such Affiliate, a "Transferee") on at least five Business Days' prior
written notice to Party B; PROVIDED that, with respect to clause (ii), (A)
as of the date of such transfer the Transferee will not be required to
withhold or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make payments of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement in
respect of such Tax; (B) a Termination Event or Event of Default does not
occur under this Agreement as a result of such transfer; (C) such notice is
accompanied by a written instrument pursuant to which the Transferee
acquires and assumes the rights and obligations of Party A so transferred,
for the benefit of Party B and (D) Party A will be responsible for any
costs or expenses incurred in connection with such transfer. Party B will
execute such documentation as is reasonably deemed necessary by Party A for
the effectuation of any such transfer. Notwithstanding the foregoing, no
transfer (including transfers under Section 7 or otherwise) shall be made
unless the transferring party obtains a written acknowledgment from each of
the Rating Agencies that, notwithstanding such transfer, the then-current
ratings of the Class A-2A Certificates will not be reduced, qualified or
withdrawn.
Except as specified otherwise in the documentation evidencing a transfer or
assignment, a transfer or assignment of all the rights and obligations of
Party A made in compliance with this Section 7 will constitute an
acceptance and assumption of such rights and obligations (and any related
interests so transferred) by the Transferee, a novation of the transferee
in place of Party A with respect to such rights and obligations (and any
related interests so transferred), and a release and discharge by Party B
of Party A from, and an agreement by Party B not to make any claim for
payment, liability, or otherwise against Party A with respect to such
rights and obligations arising from and after the effective date of the
transfer.
(e) TRUSTEE CAPACITY. It is expressly understood and agreed by the parties
hereto that (i) this Agreement is executed and delivered by ▇▇▇▇▇ Fargo
Bank, N.A., not individually or personally but solely as Trustee of the
Supplemental Interest Trust created pursuant to the Pooling Agreement (the
"Supplemental Interest Trust"), in the exercise of the powers and authority
conferred and vested in it under the Pooling Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of
Party B is made and intended not as personal representations, undertakings
and agreements by ▇▇▇▇▇ Fargo Bank, N.A. but is made and intended for the
purpose of binding only the Supplemental Interest Trust, (iii) nothing
herein contained shall be construed as creating any liability on the part
of ▇▇▇▇▇ Fargo Bank, N.A., individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto, and (iv) under no
circumstances shall ▇▇▇▇▇ Fargo Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Supplemental Interest Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Supplemental Interest Trust
under this Agreement or any other related documents, as to all of which
recourse shall be had solely to the assets of the Supplemental Interest
Trust in accordance with the terms of the Pooling Agreement.
(g) PROCEEDINGS. Party A shall not institute against or cause any other person
to institute against, or join any other person in instituting against the
Depositor, Luminent Mortgage Trust 2006-6 (the "Trust") or Party B, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy,
dissolution or similar law, for a period of one year
M-1-10
and one day, or if longer the applicable preference period then in effect,
following indefeasible payment in full of the Certificates. Nothing shall
preclude, or be deemed to stop, Party A (i) from taking any action prior to
the expiration of the aforementioned one year and one day period, or if
longer the applicable preference period then in effect, in (A) any case or
proceeding voluntarily filed or commenced by the Depositor, the Trust or
Party B, as applicable, or (B) any involuntary insolvency proceeding filed
or commenced by a Person other than Party A, or (ii) from commencing
against Party B any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar proceeding.
(h) POOLING AGREEMENT
Capitalized terms used in this Agreement that are not defined herein and
are defined in the Pooling Agreement shall have the respective meanings
assigned to them in the Pooling Agreement.
(i) SET-OFF. Notwithstanding any provision of this Agreement or any other
existing or future agreements, each of Party A and Party B irrevocably
waives as to itself any and all contractual rights it may have to set off,
net, recoup or otherwise withhold or suspend or condition its payment or
performance of any obligation to the other party under this Agreement
against any obligation of one party hereto to the other party hereto
arising outside of this Agreement (which Agreement includes without
limitation, the Master Agreement to which this Schedule is attached, this
Schedule and the Confirmation). The provisions for set-off set forth in
Section 6(e) of this Agreement shall not apply for purposes of this
Transaction.
(j) REGARDING PARTY A. Party B acknowledges and agrees that Party A has had and
will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of assets
of Party B; (ii) the selection of any person performing services for or
acting on behalf of Party B; (iii) the selection of Party A as the
Counterparty; (iv) the terms of the Certificates; (v) the preparation of or
passing on the disclosure and other information (other than disclosure and
information furnished by Party A) contained in any offering circular for
the Certificates, the Pooling Agreement, or any other agreements or
documents used by Party B or any other party in connection with the
marketing and sale of the Certificates; (vi) the ongoing operations and
administration of Party B, including the furnishing of any information to
Party B which is not specifically required under this Agreement; or (vii)
any other aspect of Party B's existence.
(j) AMENDMENTS. This Agreement will not be amended by either party without the
written consent of the other party and unless Party B shall have received
prior written confirmation from each of the Rating Agencies that such
amendment will not cause it to downgrade or withdraw its then-current
ratings of any outstanding Certificates.
(k) GROSS-UP. The provisions of Section 2(d)(i)(4) and 2(d)(ii) of this
Agreement shall not apply to Party B and Party B shall not be required to
pay any additional amounts referred to therein.
(l) RESTRICTIONS ON AMENDMENTS. Party B shall not, without the prior written
consent of Party A, enter into any amendment, supplement or other
modification to the Pooling Agreement that would materially and adversely
affect the timing, amount or priority of distributions to be made to Party
A thereunder.
(m) THIRD PARTY BENEFICIARY: Party A is a third-party beneficiary of the
Pooling Agreement as the Cap Provider (as such term is defined in the
Pooling Agreement), subject to the terms of the Pooling Agreement.
M-1-11
(n) CHANGE OF ACCOUNT OR OFFICE: (i) Any account designated by a party pursuant
to Section 2(b) shall be in the same legal and tax jurisdiction as the
original account; and (ii) As provided in Section 10(b) and 10(c) of this
Agreement, if a party is specified as a Multibranch Party in the Schedule,
then the Office through which it will make and receive payments or
deliveries under a Transaction must be specified in the Confirmation for
that Transaction, and that Office cannot be changed without the other
party's prior written consent. If any Confirmation or Transaction is sent
or executed by a party without specifying its Office, it will be presumed
that such party's Office for that Transaction is its head or home Office.
(o) NON-RECOURSE: Notwithstanding any contrary or otherwise inconsistent
provision in this Agreement, the obligations of Party B are limited
recourse obligations of Party B, payable solely from the Supplemental
Interest Trust and the proceeds thereof to satisfy Party B's obligations
under this Agreement. In the event that the Supplemental Interest Trust and
proceeds thereof should be insufficient to satisfy all claims outstanding
and following the realization of the assets of the Supplemental Interest
Trust and the distribution of the proceeds thereof in accordance with the
Pooling Agreement, any claims against or obligations of Party B under this
Agreement or any Confirmation still outstanding shall be extinguished and
thereafter not revive.
(p) FAILURE TO PAY OR DELIVER: Section 5(a)(i) of the Master Agreement in
hereby amended by replacing the word "third" with the word "first" in the
third line thereof.
(q) REGULATION AB: Party A shall furnish to Party B the financial information
for Party A specified under Item 1115(b)(1) or (b)(2), as applicable, of
Regulation AB, together with an appropriate "comfort letter" or other
agreed upon procedures letter and any necessary auditor's consents from
Party A's accountants (collectively, the "Reg. AB Information"), not later
than five (5) Local Business Days after a written request for the related
Reg. AB Information by Party B becomes effective (the "Response Period"),
so long as it has been reasonably determined in good faith by Party B (as
Supplemental Interest Trust Trustee or in any other capacity under the
Pooling Agreement) or the Sponsor that such information is required to be
disclosed under Regulation AB; provided that, if Party A determines in good
faith that it is unable to provide the Reg. AB Information during the
Response Period, then, subject to the Rating Agency Condition, Party A
shall cause a Reg. AB Approved Entity (as defined below) to replace Party A
as a party to this Agreement on substantially the same terms, and to
furnish the related Reg. AB Information, prior to the expiration of the
Response Period and at the sole expense of Party A. If Party A fails to
furnish any Reg. AB Information or cause a Reg. AB Approved Entity to
replace Party A as aforesaid, then an Additional Termination Event will
have occurred, as to which Party A shall be the sole Affected Party.
"Reg. AB Approved Entity" means any entity that (i) has the ability to
furnish the Reg. AB Information as provided above and (ii) meets or exceeds
the Approved Ratings Threshold.
Party A shall indemnify Party B, the Trust, the Depositor and the Sponsor
for, and hold them harmless against, any and all losses, claims,
liabilities, judgments, damages, penalties, fines, forfeitures and other
expenses (including any and all attorneys' fees, disbursements and other
costs, whether connected with any investigation or defense of a claim or
otherwise) arising from or relating to any actual or alleged (i) untrue
statement of a material fact contained in the Reg. AB Information or (ii)
omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading (including any failure to furnish Reg. AB
Information).
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CONFIRMATION TO INTEREST RATE SWAP AGREEMENT
Barclays Capital
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
TO: ▇▇▇▇▇ FARGO BANK, N.A., not in its individual capacity but
solely as the Supplemental Interest Trust Trustee of the
Supplemental Interest Trust of the Luminent Mortgage Trust
2006-6 on behalf of the Class A-2A Certificateholders ("PARTY B"
or "COUNTERPARTY")
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Client Manager - Luminent 2006-6
TELEPHONE NO: ▇▇▇.▇▇▇.▇▇▇▇
FAX NO: ▇▇▇.▇▇▇.▇▇▇▇
FROM: BARCLAYS BANK PLC (LONDON HEAD OFFICE) ("PARTY A" or"BARCLAYS")
DATE: September 28, 2006
BARCLAYS'
REFERENCE: To be provided by Barclays
CAP CONFIRMATION
The purpose of this facsimile (this "Confirmation") is to confirm the terms and
conditions of the Transaction entered into between us on the Trade Date
specified below (the "Transaction"). This Confirmation supersedes any previous
Confirmation or other communication with respect to the Transaction and
evidences a complete and binding agreement between us as to the terms of the
Transaction. This Confirmation constitutes a "Confirmation" as referred to in
the Agreement (as defined below).
The definitions and provisions contained in the 2000 ISDA Definitions (the "2000
Definitions"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA") are
M-2-1
incorporated into this Confirmation. In the event of any inconsistency between
the 2000 Definitions and this Confirmation, this Confirmation will govern for
the purposes of the Transaction. References herein to a "Transaction" shall be
deemed to be references to a "Swap Transaction" for the purposes of the 2000
Definitions. Capitalized terms used in this Confirmation and not defined in this
Confirmation or the 2000 Definitions shall have the respective meanings assigned
in the Agreement. All terms used herein and not otherwise defined in the
Agreement, shall have the meanings given to them in the Pooling Agreement, dated
as of September 1, 2006 (the "Pooling Agreement"), among ▇▇▇▇▇ Asset
Securitization, Inc., as depositor, Maia Mortgage Finance Statutory Trust, as
Seller, ▇▇▇▇▇ Fargo Bank, N.A., as securities administrator and master servicer,
and HSBC Bank USA, National Association, as trustee.
Each party hereto agrees to make payment to the other party hereto in accordance
with the provisions of this Confirmation and of the Agreement.
This Confirmation supersedes any previous Confirmation or other communication
with respect to the Transaction and evidences a complete and binding agreement
between you and us as to the terms of the Swap Transaction to which this
Confirmation relates.
This Confirmation is subject to the terms and conditions of the ISDA Master
Agreement dated as of September 28, 2006, between Barclays and Counterparty
(including the Schedule to that ISDA Master Agreement, the "Agreement") and
shall form a part of and be subject to that ISDA Master Agreement.
Each party represents to the other party that (absent a written agreement
between the parties that expressly imposes affirmative obligations to the
contrary): -
(a) NON-RELIANCE. It is acting for its own account, and it has made its own
independent decisions to enter into the Transaction and as to whether the
Transaction is appropriate or proper based upon its own judgement and upon
advice from such advisers as it has deemed necessary. It is not relying on
any communication (written or oral) of the other party as investment advice
or as a recommendation to enter into the Transaction: it being understood
that information and explanations related to the terms and conditions of
the Transaction shall not be considered investment advice or a
recommendation to enter into the Transaction. No communication (written or
oral) received from the other party shall be deemed to be an assurance or
guarantee as to the expected results of the Transaction.
M-2-2
(b) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits of and
understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks of
the Transaction. It is also capable of assuming, and assumes, the risks of
the Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a fiduciary for or an
adviser to it in respect of the Transaction.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
1. GENERAL TERMS
Notional Amount: As at any date, the Certificate Principal Balance of the
Class A-2A Certificates on such date, before giving
effect to any distributions or allocations on such date.
Trade Date: September 28, 2006
Effective Date: September 28, 2006
Termination Date: The Distribution Date on which the Certificate Principal
Balance of the Class A-2A Certificates has been reduced
to zero, subject to adjustment in accordance with the
Following Business Day Convention.
2. CAP PAYMENT AMOUNT
Cap Payment Amount: On each Cap Payer Payment Date, the Cap Provider shall
pay to the Counterparty the product of: (i) the Notional
Amount multiplied by (ii) the positive Cap Payment Rate
multiplied by (iii) the Day Count Fraction.
Cap Provider: Barclays.
Cap Payment Rate: The excess, if any, of (A) the sum of USD-LIBOR-BBA with
a Designated Maturity of one (1) month and the
Pass-Through Margin then applicable to the Class A-2A
Certificates over (B) the applicable Adjusted Net WAC
Rate.
Cap Payer Payment Early Payment shall be applicable. The Cap Payer Payment
Dates: Dates shall be one Business Day prior to the 25th
calendar day of each month from and including such
Business Day in October 2006 to and including the
Termination Date, subject to adjustment in accordance
with the Following Business Day Convention.
M-2-3
Cap Rate: The applicable Adjusted Net WAC Rate.
Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: One (1) month.
Spread: The Pass-Through Margin applicable to the Class A-2A
Certificates.
Day Count Fraction: Actual / 360.
Period End Dates: The 25th calendar day of each month from and including
such day in October 2006 to and including the
Termination Date, subject to adjustment in accordance
with the Following Business Day Convention.
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable.
3. NET WAC CAP
CARRYOVER AMOUNT
Net WAC Cap Carryover Counterparty
Amount Payer:
Net WAC Cap Carryover The Net WAC Cap Carryover Amount related to the Class
Amount: A-2A Certificates.
Net WAC Cap Carryover Each Distribution Date from and including the
Amount Payer Payment Distribution Date in October 2006 to and including the
Dates: Termination Date, subject to adjustment in accordance
with the Following Business Day Convention.
4. ADDITIONAL
NEGATIVE AMORTIZATION
CARRYOVER AMOUNT
Additional Negative Counterparty.
Amortization Carryover
Amount Payer:
Additional Negative The Additional Negative Amortization Carryover Amount
Amortization Carryover related to the Class A-2A Certificates.
Amount:
Additional Negative Each Distribution Date from and including the
Amortization Carryover Distribution Date in October 2006 to and including the
Amount Payer Payment Termination Date, subject to adjustment in accordance
Dates: with the Following Business Day Convention.
M-2-4
5. OTHER PROVISIONS
Business Days: New York.
Business Day Following.
Convention:
Calculation Agent: Barclays. For the purpose of making any determination or
calculation hereunder, the Calculation Agent may rely on
any information, report, notice or certificate delivered
to it by the Supplemental Interest Trust Trustee and the
Calculation Agent shall not be liable for any error,
incompleteness or omission regarding such information.
Netting of Payments: Section 2(c)(ii) of the Agreement shall apply to
payments made with respect to this Transaction.
6. ACCOUNTS DETAILS
Payments to Barclays: Correspondent: BARCLAYS BANK PLC NEW YORK
FEED: ▇▇▇▇▇▇▇▇▇
Beneficiary: BARCLAYS SWAPS
Beneficiary Account: ▇▇▇-▇▇▇▇▇-▇
Payments to ▇▇▇▇▇ Fargo Bank, N.A.
Counterparty: ABA #▇▇▇-▇▇▇-▇▇▇
SAS Clearing
Acct #▇▇▇▇▇▇▇▇▇▇
FFC to Luminent 2006-6, Acct # 50953201
7. NOTICES
Barclays: Barclays Capital
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Counterparty: ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Client Manager - Luminent 2006-6
Telephone No: ▇▇▇.▇▇▇.▇▇▇▇
Fax No: ▇▇▇.▇▇▇.▇▇▇▇
M-2-5
The time of dealing will be confirmed by Barclays upon written request. Barclays
is regulated by the Financial Services Authority. Barclays is acting for its own
account in respect of this Transaction.
Please confirm that the foregoing correctly sets forth all the terms and
conditions of our agreement with respect to the Transaction by responding within
three (3) Business Days by promptly signing in the space provided below and both
(i) faxing the signed copy to Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operations,
Fax ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6857, Tel ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6904/6965, and (ii) mailing
the signed copy to Barclays Bank PLC, 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention of Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operation.
Your failure to respond within such period shall not affect the validity or
enforceability of the Transaction against you. This facsimile shall be the only
documentation in respect of the Transaction and accordingly no hard copy
versions of this Confirmation for this Transaction shall be provided unless the
Counterparty requests.
For and on behalf of For and on behalf of
BARCLAYS BANK PLC ▇▇▇▇▇ FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS
SUPPLEMENTAL INTEREST TRUST TRUSTEE OF
THE LUMINENT MORTGAGE TRUST 2006-6 ON
BEHALF OF THE CLASS A-2A
CERTIFICATEHOLDERS
------------------------------------- ----------------------------------------
Name: Name:
Title: Title:
Date: Date:
Barclays Bank PLC and its Affiliates, including Barclays Capital Inc., may share
with each other information, including non-public credit information, concerning
its clients and prospective clients. If you do not want such information to be
shared, you must write to the Director of Compliance, Barclays Bank PLC, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
M-2-6
PAGE>
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
BARCLAYS BANK PLC
By:
-----------------------------------
Name:
Title:
Date:
▇▇▇▇▇ FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS THE
SUPPLEMENTAL INTEREST TRUST TRUSTEE OF
THE SUPPLEMENTAL INTEREST TRUST OF THE
LUMINENT MORTGAGE TRUST 2006-6 ON
BEHALF OF THE CLASS A-2A
CERTIFICATEHOLDERS
By:
-----------------------------------
Name:
Title:
Date:
ISDA Master Agreement Schedule Signature page
M-2-7
EXHIBIT 1122
RELEVANT SERVICING CRITERIA
The assessment of compliance to be delivered by the Master Servicer, the
Securities Administrator and the Custodian shall address, at a minimum, the
criteria identified as below as "Applicable Servicing Criteria" with respect to
such party:
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.
MASTER SERVICER,
PAYING AGENT,
REGULATION AB SECURITIES
REFERENCE SERVICING CRITERIA SERVICERS ADMINISTRATOR CUSTODIAN
---------------- -------------------------------------------- --------- ---------------- ---------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to X X
monitor any performance or other triggers
and events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are X X
outsourced to third parties, policies and
procedures are instituted to monitor the
third party's performance and compliance
with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction
agreements to maintain a back-up servicer
for the Pool Assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions X X
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.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited into X X
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.
1122(d)(2)(ii) Disbursements made via wire transfer on X X
behalf of an obligor or to an investor are
made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding X X
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.
1122(d)(2)(iv) The related accounts for the transaction, X X
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.
1122-1
MASTER SERVICER,
PAYING AGENT,
REGULATION AB SECURITIES
REFERENCE SERVICING CRITERIA SERVICERS ADMINISTRATOR CUSTODIAN
---------------- -------------------------------------------- --------- ---------------- ---------
1122(d)(2)(v) Each custodial account is maintained at a X X
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.
1122(d)(2)(vi) Unissued checks are safeguarded so as to X X
prevent unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly X X
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.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be X X
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.
1122(d)(3)(ii) Amounts due to investors are allocated and X X
remitted in accordance with timeframes,
distribution priority and other terms set
forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted X X
within two business days to the Servicer's
investor records, or such other number of
days specified in the transaction
agreements.
1122(d)(3)(iv) Amounts remitted to investors per the X X
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
1122-2
MASTER SERVICER,
PAYING AGENT,
REGULATION AB SECURITIES
REFERENCE SERVICING CRITERIA SERVICERS ADMINISTRATOR CUSTODIAN
---------------- -------------------------------------------- --------- ---------------- ---------
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets is X X
maintained as required by the transaction
agreements or related pool asset documents.
1122(d)(4)(ii) Pool assets and related documents are X X
safeguarded as required by the transaction
agreements
1122(d)(4)(iii) Any additions, removals or substitutions to X
the asset pool are made, reviewed and
approved in accordance with any conditions
or requirements in the transaction
agreements.
1122(d)(4)(iv) Payments on pool assets, including any X
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.
1122(d)(4)(v) The Servicer's records regarding the X
pool assets agree with the Servicer's
records with respect to an obligor's
unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or X
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.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., X
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.
1122(d)(4)(viii) Records documenting collection efforts are X
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).
1122(d)(4)(ix) Adjustments to interest rates or rates of X
return for pool assets with variable rates
are computed based on the related pool asset
documents.
1122-3
MASTER SERVICER,
PAYING AGENT,
REGULATION AB SECURITIES
REFERENCE SERVICING CRITERIA SERVICERS ADMINISTRATOR CUSTODIAN
---------------- -------------------------------------------- --------- ---------------- ---------
1122(d)(4)(x) Regarding any funds held in trust for an X
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.
1122(d)(4)(xi) Payments made on behalf of an obligor (such X
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.
1122(d)(4)(xii) Any late payment penalties in connection X
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.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor X
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.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible X
accounts are recognized and recorded in
accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, X
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements.
1122-4
EXHIBIT SOX
FORM OF ANNUAL CERTIFICATION
Re: The Pooling Agreement dated as of September 1, 2006 (the "Agreement"), by
and among ▇▇▇▇▇ Asset Securitization, Inc., as depositor (the "Depositor"),
Maia Mortgage Finance Statutory Trust, as Seller (the "Seller"), HSBC Bank
USA, National Association, as trustee (the "Trustee"), and ▇▇▇▇▇ Fargo
Bank, N.A., in its dual capacities as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator").
I, ________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Depositor], and the Master Servicer, the Securities
Administrator, and their officers, with the knowledge and intent that they will
rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the "Compliance Statement"), the
report on assessment of the Company's compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[_] that were delivered by the
Company to the Securities Administrator pursuant to the Agreement (collectively,
the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information required to
be provided by the Company under the Agreement has been provided to the
Securities Administrator;
(4) I am responsible for reviewing the activities performed by the Company as
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The Compliance Statement required to be delivered by the Company pursuant to
the Agreement, and the Servicing Assessment and Attestation Report required to
be
Sox-1
provided by the Company and by any Subservicer and Subcontractor pursuant to the
Agreement, have been provided to the Securities Administrator. Any material
instances of noncompliance described in such reports have been disclosed to the
Securities Administrator. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date: ___________________________
By:
------------------------------
Sox-2