Exhibit 4.1
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BCAP LLC,
Depositor,
_____________________________________________,
Servicer,
_____________________________________________,
Responsible Party
_____________________________________________,
Loan Performance Advisor,
_____________________________________________,
Trustee
and
_____________________________________________,
Securities Administrator and Custodian
------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of _____________, 200_
------------------------------------------------
BCAP LLC TRUST 200_-___
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 200_-___
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans..................................63
Section 2.02 Acceptance by the Trustee of the Mortgage Loans...............66
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party and the Servicer; Remedies for
Breaches of Representations and Warranties with
Respect to the Mortgage Loans...............................67
Section 2.04 [Reserved]....................................................70
Section 2.05 Execution and Delivery of Certificates........................70
Section 2.06 REMIC Matters.................................................70
Section 2.07 Representations and Warranties of the Depositor...............71
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans............................72
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers................................................74
Section 3.03 Successor Subservicers........................................75
Section 3.04 Liability of the Servicer.....................................76
Section 3.05 No Contractual Relationship between Subservicers
and the Trustee.............................................76
Section 3.06 Assumption or Termination of Subservicing Agreements
by Trustee..................................................76
Section 3.07 Collection of Certain Mortgage Loan Payments..................77
Section 3.08 Subservicing Accounts.........................................79
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................79
Section 3.10 Collection Account............................................80
Section 3.11 Withdrawals from the Collection Account.......................82
Section 3.12 Investment of Funds in the Collection Account, Escrow
Accounts and the Distribution Account.......................83
Section 3.13 Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage.............................84
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements..................................................85
Section 3.15 Realization upon Defaulted Mortgage Loans.....................86
Section 3.16 Release of Mortgage Files.....................................88
-i-
Section 3.17 Title, Conservation and Disposition of REO
Property....................................................89
Section 3.18 Notification of Adjustments...................................90
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans................................91
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Securities Administrator........91
Section 3.21 Servicing Compensation........................................91
Section 3.22 Annual Statement as to Compliance.............................92
Section 3.23 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public
Accountants' Attestation Report.............................93
Section 3.24 Trustee to Act as Servicer....................................94
Section 3.25 Compensating Interest.........................................95
Section 3.26 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act......................95
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances......................................................95
Section 4.02 Priorities of Distribution....................................97
Section 4.03 Monthly Statements to Certificateholders.....................103
Section 4.04 Certain Matters Relating to the Determination of LIBOR.......108
Section 4.05 Allocation of Applied Realized Loss Amounts..................108
Section 4.06 Swap Account.................................................108
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................110
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates...................................111
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............117
Section 5.04 Persons Deemed Owners........................................117
Section 5.05 Access to List of Certificateholders' Names and Addresses....117
Section 5.06 Maintenance of Office or Agency..............................118
ARTICLE VI
THE DEPOSITOR, THE SERVICER
AND THE LOAN PERFORMANCE ADVISOR
Section 6.01 Respective Liabilities of the Depositor and the Servicer.....118
Section 6.02 Merger or Consolidation of the Depositor or the Servicer.....118
Section 6.03 Limitation on Liability of the Depositor, the
Servicer and Others........................................119
-ii-
Section 6.04 Limitation on Resignation of the Servicer....................120
Section 6.05 Additional Indemnification by the Servicer; Third
Party Claims...............................................120
Section 6.06 Duties of the Loan Performance Advisor.......................121
Section 6.07 Loan Performance Advisor's Fees..............................121
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................121
Section 7.02 Trustee to Act; Appointment of Successor.....................123
Section 7.03 Notification to Certificateholders...........................125
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee........................................125
Section 8.02 Certain Matters Affecting the Trustee........................126
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans........127
Section 8.04 Trustee May Own Certificates.................................128
Section 8.05 Trustee's Fees and Expenses..................................128
Section 8.06 Eligibility Requirements for the Trustee.....................129
Section 8.07 Resignation and Removal of the Trustee.......................129
Section 8.08 Successor Trustee............................................130
Section 8.09 Merger or Consolidation of the Trustee.......................130
Section 8.10 Appointment of Co-Trustee or Separate Trustee................130
Section 8.11 Tax Matters..................................................132
Section 8.12 Periodic Filings.............................................135
Section 8.13 Tax Classification of the Excess Reserve Fund
Account, the Swap Account, the Interest Rate
Swap Agreement and the Cap Agreements......................141
ARTICLE IX
CONCERNING THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Securities Administrator...........................142
Section 9.02 Certain Matters Affecting the Securities Administrator.......143
Section 9.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans..........................................145
Section 9.04 Securities Administrator May Own Certificates................145
Section 9.05 Securities Administrator's Fees and Expenses.................146
Section 9.06 Eligibility Requirements for Securities Administrator........146
Section 9.07 Resignation and Removal of Securities Administrator..........147
Section 9.08 Successor Securities Administrator...........................148
Section 9.09 Merger or Consolidation of Securities Administrator..........148
Section 9.10 Assignment or Delegation of Duties by the Securities
Administrator..............................................148
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ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Purchase of the
Mortgage Loans.............................................149
Section 10.02 Final Distribution on the Certificates.......................150
Section 10.03 Additional Termination Requirements..........................151
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................152
Section 11.02 Recordation of Agreement; Counterparts.......................153
Section 11.03 Governing Law................................................154
Section 11.04 Intention of Parties.........................................154
Section 11.05 Notices......................................................154
Section 11.06 Severability of Provisions...................................155
Section 11.07 Assignment...................................................155
Section 11.08 Limitation on Rights of Certificateholders...................155
Section 11.09 Inspection and Audit Rights..................................156
Section 11.10 Certificates Nonassessable and Fully Paid....................156
Section 11.11 Assignment; Sales; Advance Facilities........................157
Section 11.12 Rule of Construction.........................................158
Section 11.13 Waiver of Jury Trial.........................................158
Section 11.14 Rights of the Swap Provider..................................158
Section 11.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness.............................................158
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SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of ___________
Schedule III Representations and Warranties of the Responsible Party as to
the Mortgage Loans
Schedule IV Representations and Warranties as to the Responsible Party
Schedule V Representations and Warranties of the Depositor as to the
Mortgage Loans
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C Form of Class R Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Request for Release
Exhibit K Form of Contents for Each Mortgage File
Exhibit L Form of Certification to be provided with Form 10-K
Exhibit M Form of Trustee's Certification to be provided to Depositor
Exhibit N Form of Servicer's Certification to be provided to Depositor
Exhibit O Servicing Criteria
Exhibit P Additional Form 10-D Disclosure
Exhibit Q Additional Form 10-K Disclosure
-v-
Exhibit R Form 8-K Disclosure Information
Exhibit S Interest Rate Swap Agreement
Exhibit T Class M Cap Agreement
Exhibit U Class B Cap Agreement
Exhibit V Servicer Remittance Report Format
Exhibit W Additional Disclosure Notification
Exhibit X Sponsor Representation Letter
-vi-
THIS POOLING AND SERVICING AGREEMENT, dated as of ________, 200_,
among BCAP LLC, a _______________, as depositor (the "Depositor"),
_____________________, a _________, as servicer (the "Servicer"),
_____________________, a _________, as responsible party (the "Responsible
Party"), _____________________, a _________, as loan performance advisor (the
"Loan Performance Advisor"), _____________________, as trustee (the "Trustee")
and _____________________, a _________, as securities administrator and
custodian.
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that four segregated asset pools within the
Trust Fund (exclusive of (i) the Prepayment Charges, (ii) the Interest Rate Swap
Agreement and the Cap Agreements, (iii) the Swap Account, (iv) the Excess
Reserve Fund Account, and (v) the right of the LIBOR Certificates to receive
Upper Tier Carry Forward Amounts and, without duplication, Basis Risk Carry
Forward Amounts and the obligation to pay Class IO Shortfalls) be treated for
federal income tax purposes as comprising four REMICs (each, a "Trust REMIC" or,
in the alternative, Pooling Tier REMIC-1, Pooling Tier REMIC-2, the Lower Tier
REMIC and the Upper Tier REMIC, respectively). Each Class of Certificates (other
than the Class P and Class R Certificates), other than the right of each Class
of LIBOR Certificates to receive Upper Tier Carry Forward Amounts and, without
duplication, Basis Risk Carry Forward Amounts and the obligation to pay Class IO
Shortfalls and the right of the Class X Certificates to receive payments from
the Interest Rate Swap Agreement, the Cap Agreements and the Class IO
Shortfalls, represents ownership of a regular interest in the Upper Tier REMIC
for purposes of the REMIC Provisions. The Class R Certificates represent
ownership of the sole class of residual interest in each of Pooling Tier
REMIC-1, Pooling Tier REMIC-2, the Lower Tier REMIC and the Upper Tier REMIC for
purposes of the REMIC Provisions. The Startup Day for each REMIC described
herein is the Closing Date. The latest possible maturity date for each regular
interest is the latest date referenced in Section 2.06.
The Upper Tier REMIC shall hold as assets the several classes of
uncertificated Lower Tier REMIC Regular Interests, set out below. The Lower Tier
REMIC shall hold as assets the several classes of uncertificated Pooling Tier
REMIC-2 Regular Interests. Pooling Tier REMIC-2 shall hold as assets the several
classes of uncertificated Pooling Tier REMIC-1 Regular Interests. Pooling Tier
REMIC-1 shall hold as assets the assets of the Trust Fund (exclusive of (i) the
Prepayment Premiums, (ii) the Interest Rate Swap Agreement and the Cap
Agreements, (iii) the Swap Account, (iv) the Excess Reserve Fund Account, and
(v) the right of the LIBOR Certificates to receive Upper Tier Carry Forward
Amounts and, without duplication, Basis Risk Carry Forward Amounts and the
obligation to pay Class IO Shortfalls).
For federal income tax purposes, the Class P Certificates represent
beneficial ownership of the Prepayment Charges, each Class of LIBOR Certificates
represents beneficial
ownership of a regular interest in the Upper Tier REMIC and the right to receive
Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk Carry
Forward Amounts, and the Class X Certificates represent beneficial ownership of
two regular interests in the Upper Tier REMIC and the right to receive payments
from the Class IO Shortfalls, the Excess Reserve Fund Account, the Swap Account,
the Interest Rate Swap Agreement and the Cap Agreements, which portions of the
Trust Fund shall be treated as a grantor trust.
Pooling Tier REMIC-1
--------------------
Pooling Tier REMIC-1 shall issue the following interests in Pooling
Tier REMIC-1, and each such interest, other than the Class PT1-R Interest, is
hereby designated as a regular interest in the Pooling Tier REMIC-1. Pooling
Tier REMIC-1 Interests with an "I" in their designation shall relate to the
Group I Mortgage Loans and Pooling Tier REMIC-1 Interests with a "II" in their
designation shall relate to the Group II Mortgage Loans. Pooling Tier REMIC-1
shall also issue the Class PT1-R Interest, which shall be represented by the
Class R Certificates. The Class PT1-R Interest is hereby designated as the sole
class of residual interest in Pooling Tier REMIC-1.
Initial Pooling Tier
Pooling Tier REMIC-1 REMIC-1
Pooling Tier REMIC-1 Interest Interest Rate Principal Amount
----------------------------- -------------------- --------------------
Class PT1-I-1 (1) $
Class PT1-I-2A (2) $
Class PT1-I-2B (3) $
Class PT1-I-3A (2) $
Class PT1-I-3B (3) $
Class PT1-I-4A (2) $
Class PT1-I-4B (3) $
Class PT1-I-5A (2) $
Class PT1-I-5B (3) $
Class PT1-I-6A (2) $
Class PT1-I-6B (3) $
Class PT1-I-7A (2) $
Class PT1-I-7B (3) $
Class PT1-I-8A (2) $
Class PT1-I-8B (3) $
Class PT1-I-9A (2) $
Class PT1-I-9B (3) $
Class PT1-I-10A (2) $
Class PT1-I-10B (3) $
Class PT1-I-11A (2) $
Class PT1-I-11B (3) $
Class PT1-I-12A (2) $
Class PT1-I-12B (3) $
Class PT1-I-13A (2) $
Class PT1-I-13B (3) $
Class PT1-I-14A (2) $
-2-
Initial Pooling Tier
Pooling Tier REMIC-1 REMIC-1
Pooling Tier REMIC-1 Interest Interest Rate Principal Amount
----------------------------- -------------------- --------------------
Class PT1-I-14B (3) $
Class PT1-I-15A (2) $
Class PT1-I-15B (3) $
Class PT1-I-16A (2) $
Class PT1-I-16B (3) $
Class PT1-I-17A (2) $
Class PT1-I-17B (3) $
Class PT1-I-18A (2) $
Class PT1-I-18B (3) $
Class PT1-I-19A (2) $
Class PT1-I-19B (3) $
Class PT1-I-20A (2) $
Class PT1-I-20B (3) $
Class PT1-I-21A (2) $
Class PT1-I-21B (3) $
Class PT1-I-22A (2) $
Class PT1-I-22B (3) $
Class PT1-I-23A (2) $
Class PT1-I-23B (3) $
Class PT1-I-24A (2) $
Class PT1-I-24B (3) $
Class PT1-I-25A (2) $
Class PT1-I-25B (3) $
Class PT1-I-26A (2) $
Class PT1-I-26B (3) $
Class PT1-I-27A (2) $
Class PT1-I-27B (3) $
Class PT1-I-28A (2) $
Class PT1-I-28B (3) $
Class PT1-I-29A (2) $
Class PT1-I-29B (3) $
Class PT1-I-30A (2) $
Class PT1-I-30B (3) $
Class PT1-I-31A (2) $
Class PT1-I-31B (3) $
Class PT1-I-32A (2) $
Class PT1-I-32B (3) $
Class PT1-I-33A (2) $
Class PT1-I-33B (3) $
Class PT1-I-34A (2) $
Class PT1-I-34B (3) $
Class PT1-I-35A (2) $
-3-
Initial Pooling Tier
Pooling Tier REMIC-1 REMIC-1
Pooling Tier REMIC-1 Interest Interest Rate Principal Amount
----------------------------- -------------------- --------------------
Class PT1-I-35B (3) $
Class PT1-I-36A (2) $
Class PT1-I-36B (3) $
Class PT1-I-37A (2) $
Class PT1-I-37B (3) $
Class PT1-I-38A (2) $
Class PT1-I-38B (3) $
Class PT1-I-39A (2) $
Class PT1-I-39B (3) $
Class PT1-I-40A (2) $
Class PT1-I-40B (3) $
Class PT1-I-41A (2) $
Class PT1-I-41B (3) $
Class PT1-I-42A (2) $
Class PT1-I-42B (3) $
Class PT1-I-43A (2) $
Class PT1-I-43B (3) $
Class PT1-I-44A (2) $
Class PT1-I-44B (3) $
Class PT1-I-45A (2) $
Class PT1-I-45B (3) $
Class PT1-I-46A (2) $
Class PT1-I-46B (3) $
Class PT1-I-47A (2) $
Class PT1-I-47B (3) $
Class PT1-I-48A (2) $
Class PT1-I-48B (3) $
Class PT1-I-49A (2) $
Class PT1-I-49B (3) $
Class PT1-I-50A (2) $
Class PT1-I-50B (3) $
Class PT1-I-51A (2) $
Class PT1-I-51B (3) $
Class PT1-I-52A (2) $
Class PT1-I-52B (3) $
Class PT1-I-53A (2) $
Class PT1-I-53B (3) $
Class PT1-I-54A (2) $
Class PT1-I-54B (3) $
Class PT1-I-55A (2) $
Class PT1-I-55B (3) $
Class PT1-I-56A (3) $
-4-
Initial Pooling Tier
Pooling Tier REMIC-1 REMIC-1
Pooling Tier REMIC-1 Interest Interest Rate Principal Amount
----------------------------- -------------------- --------------------
Class PT1-I-56B (4) $
Class PT1-I-57A (3) $
Class PT1-I-57B (4) $
Class PT1-II-1 (4) $
Class PT1-II-2A (5) $
Class PT1-II-2B (6) $
Class PT1-II-3A (5) $
Class PT1-II-3B (6) $
Class PT1-II-4A (5) $
Class PT1-II-4B (6) $
Class PT1-II-5A (5) $
Class PT1-II-5B (6) $
Class PT1-II-6A (5) $
Class PT1-II-6B (6) $
Class PT1-II-7A (5) $
Class PT1-II-7B (6) $
Class PT1-II-8A (5) $
Class PT1-II-8B (6) $
Class PT1-II-9A (5) $
Class PT1-II-9B (6) $
Class PT1-II-10A (5) $
Class PT1-II-10B (6) $
Class PT1-II-11A (5) $
Class PT1-II-11B (6) $
Class PT1-II-12A (5) $
Class PT1-II-12B (6) $
Class PT1-II-13A (5) $
Class PT1-II-13B (6) $
Class PT1-II-14A (5) $
Class PT1-II-14B (6) $
Class PT1-II-15A (5) $
Class PT1-II-15B (6) $
Class PT1-II-16A (5) $
Class PT1-II-16B (6) $
Class PT1-II-17A (5) $
Class PT1-II-17B (6) $
Class PT1-II-18A (5) $
Class PT1-II-18B (6) $
Class PT1-II-19A (5) $
Class PT1-II-19B (6) $
Class PT1-II-20A (5) $
Class PT1-II-20B (6) $
-5-
Initial Pooling Tier
Pooling Tier REMIC-1 REMIC-1
Pooling Tier REMIC-1 Interest Interest Rate Principal Amount
----------------------------- -------------------- --------------------
Class PT1-II-21A (5) $
Class PT1-II-21B (6) $
Class PT1-II-22A (5) $
Class PT1-II-22B (6) $
Class PT1-II-23A (5) $
Class PT1-II-23B (6) $
Class PT1-II-24A (5) $
Class PT1-II-24B (6) $
Class PT1-II-25A (5) $
Class PT1-II-25B (6) $
Class PT1-II-26A (5) $
Class PT1-II-26B (6) $
Class PT1-II-27A (5) $
Class PT1-II-27B (6) $
Class PT1-II-28A (5) $
Class PT1-II-28B (6) $
Class PT1-II-29A (5) $
Class PT1-II-29B (6) $
Class PT1-II-30A (5) $
Class PT1-II-30B (6) $
Class PT1-II-31A (5) $
Class PT1-II-31B (6) $
Class PT1-II-32A (5) $
Class PT1-II-32B (6) $
Class PT1-II-33A (5) $
Class PT1-II-33B (6) $
Class PT1-II-34A (5) $
Class PT1-II-34B (6) $
Class PT1-II-35A (5) $
Class PT1-II-35B (6) $
Class PT1-II-36A (5) $
Class PT1-II-36B (6) $
Class PT1-II-37A (5) $
Class PT1-II-37B (6) $
Class PT1-II-38A (5) $
Class PT1-II-38B (6) $
Class PT1-II-39A (5) $
Class PT1-II-39B (6) $
Class PT1-II-40A (5) $
Class PT1-II-40B (6) $
Class PT1-II-41A (5) $
Class PT1-II-41B (6) $
-6-
Initial Pooling Tier
Pooling Tier REMIC-1 REMIC-1
Pooling Tier REMIC-1 Interest Interest Rate Principal Amount
----------------------------- -------------------- --------------------
Class PT1-II-42A (5) $
Class PT1-II-42B (6) $
Class PT1-II-43A (5) $
Class PT1-II-43B (6) $
Class PT1-II-44A (5) $
Class PT1-II-44B (6) $
Class PT1-II-45A (5) $
Class PT1-II-45B (6) $
Class PT1-II-46A (5) $
Class PT1-II-46B (6) $
Class PT1-II-47A (5) $
Class PT1-II-47B (6) $
Class PT1-II-48A (5) $
Class PT1-II-48B (6) $
Class PT1-II-49A (5) $
Class PT1-II-49B (6) $
Class PT1-II-50A (5) $
Class PT1-II-50B (6) $
Class PT1-II-51A (5) $
Class PT1-II-51B (6) $
Class PT1-II-52A (5) $
Class PT1-II-52B (6) $
Class PT1-II-53A (5) $
Class PT1-II-53B (6) $
Class PT1-II-54A (5) $
Class PT1-II-54B (6) $
Class PT1-II-55A (5) $
Class PT1-II-55B (6) $
Class PT1-II-56A (5) $
Class PT1-II-56B (6) $
Class PT1-II-57A (5) $
Class PT1-II-57B (6) $
Class PT1-R (7) N/A
----------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the Pooling Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the product of (i)
2 and (ii) the Pooling Tier REMIC-1 Loan Group I WAC Rate, subject to a
maximum rate of _______%.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling Tier REMIC-1 Loan
Group I WAC Rate over (B) _______%.
-7-
(4) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the Pooling Tier
REMIC-1 Loan Group II WAC Rate.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the product of (i)
2 and (ii) the Pooling Tier REMIC-1 Loan Group II WAC Rate, subject to a
maximum rate of _______%.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling Tier REMIC-1 Loan
Group II WAC Rate over (B) _______%.
(7) The Class PT1-R Interest shall not have a principal balance and shall not
bear interest.
On each Distribution Date, the Securities Administrator shall first
pay from the Trust Fund and charge as an expense of Pooling Tier REMIC-1 all
expenses of the Trust for such Distribution Date. Such expense, other than
Servicing Fees and Trustee Fees, shall be allocated in the same manner as
Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans from the related Loan Group for such Distribution Date shall
be deemed to be distributed to the Pooling Tier REMIC-1 Regular Interests at the
rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the outstanding Pooling Tier REMIC-1 Regular Interest relating to
the Group I Mortgage Loans with the lowest numerical denomination until the
Pooling Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling Tier REMIC-1 Regular Interests relating
to the Group I Mortgage Loans with the same numerical denomination, such
Realized Losses and payments of principal shall be allocated pro rata between
such Pooling Tier REMIC-1 Regular Interests until the Pooling-Tier REMIC-1
Principal Amount of such interests is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling Tier REMIC-1 Regular Interest relating to
the Group II Mortgage Loans with the lowest numerical denomination until the
Pooling Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling Tier REMIC-1 Regular Interests relating
to the Group II Mortgage Loans with the same numerical denomination, such
Realized Losses, Subsequent Recoveries and payments of principal shall be
allocated pro rata between such Pooling Tier REMIC-1 Regular Interests until the
Pooling-Tier REMIC-1 Principal Amount of such interests is reduced to zero.
Pooling-Tier REMIC-2
--------------------
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
Pooling Tier REMIC-2 Interests with an "I" in their designation shall relate to
The Group I Mortgage Loans and Pooling Tier REMIC-2 Interests with a "II" in
their designation shall relate to The Group II Mortgage Loans. The Class PT2-R
-8-
Interest is hereby designated as the sole class of residual interest in
Pooling-Tier REMIC-2 and shall be represented by the Class R Certificates.
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-I-1 (1) $ N/A N/A N/A
Class PT2-I-2A (2) $ Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ N/A N/A N/A
Class PT2-I-3A (2) $ Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ N/A N/A N/A
Class PT2-I-4A (2) $ Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ N/A N/A N/A
Class PT2-I-5A (2) $ Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ N/A N/A N/A
Class PT2-I-6A (2) $ Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ N/A N/A N/A
Class PT2-I-7A (2) $ Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ N/A N/A N/A
Class PT2-I-8A (2) $ Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $ N/A N/A N/A
Class PT2-I-9A (2) $ Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $ N/A N/A N/A
Class PT2-I-10A (2) $ Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ N/A N/A N/A
Class PT2-I-11A (2) $ Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ N/A N/A N/A
Class PT2-I-12A (2) $ Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ N/A N/A N/A
Class PT2-I-13A (2) $ Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ N/A N/A N/A
Class PT2-I-14A (2) $ Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ N/A N/A N/A
Class PT2-I-15A (2) $ Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ N/A N/A N/A
Class PT2-I-16A (2) $ Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ N/A N/A N/A
Class PT2-I-17A (2) $ Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ N/A N/A N/A
Class PT2-I-18A (2) $ Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ N/A N/A N/A
Class PT2-I-19A (2) $ Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ N/A N/A N/A
Class PT2-I-20A (2) $ Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ N/A N/A N/A
Class PT2-I-21A (2) $ Class PT2-I-IO-21 N/A N/A
-9-
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-I-21B (3) $ N/A N/A N/A
Class PT2-I-22A (2) $ Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ N/A N/A N/A
Class PT2-I-23A (2) $ Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ N/A N/A N/A
Class PT2-I-24A (2) $ Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ N/A N/A N/A
Class PT2-I-25A (2) $ Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ N/A N/A N/A
Class PT2-I-26A (2) $ Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ N/A N/A N/A
Class PT2-I-27A (2) $ Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ N/A N/A N/A
Class PT2-I-28A (2) $ Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ N/A N/A N/A
Class PT2-I-29A (2) $ Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ N/A N/A N/A
Class PT2-I-30A (2) $ Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ N/A N/A N/A
Class PT2-I-31A (2) $ Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ N/A N/A N/A
Class PT2-I-32A (2) $ Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ N/A N/A N/A
Class PT2-I-33A (2) $ Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ N/A N/A N/A
Class PT2-I-34A (2) $ Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ N/A N/A N/A
Class PT2-I-35A (2) $ Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ N/A N/A N/A
Class PT2-I-36A (2) $ Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ N/A N/A N/A
Class PT2-I-37A (2) $ Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ N/A N/A N/A
Class PT2-I-38A (2) $ Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ N/A N/A N/A
Class PT2-I-39A (2) $ Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ N/A N/A N/A
Class PT2-I-40A (2) $ Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ N/A N/A N/A
Class PT2-I-41A (2) $ Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ N/A N/A N/A
Class PT2-I-42A (2) $ Class PT2-I-IO-42 N/A N/A
-10-
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-I-42B (3) $ N/A N/A N/A
Class PT2-I-43A (2) $ Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ N/A N/A N/A
Class PT2-I-44A (2) $ Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ N/A N/A N/A
Class PT2-I-45A (2) $ Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ N/A N/A N/A
Class PT2-I-46A (2) $ Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ N/A N/A N/A
Class PT2-I-47A (2) $ Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ N/A N/A N/A
Class PT2-I-48A (2) $ Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ N/A N/A N/A
Class PT2-I-49A (2) $ Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ N/A N/A N/A
Class PT2-I-50A (2) $ Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ N/A N/A N/A
Class PT2-I-51A (2) $ Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ N/A N/A N/A
Class PT2-I-52A (2) $ Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ N/A N/A N/A
Class PT2-I-53A (2) $ Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ N/A N/A N/A
Class PT2-I-54A (2) $ Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ N/A N/A N/A
Class PT2-I-55A (2) $ Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ N/A N/A N/A
Class PT2-I-56A (2) $ Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ N/A N/A N/A
Class PT2-I-57A (2) $ Class PT2-I-IO-56 N/A N/A
Class PT2-I-57B (3) $ N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A
-11-
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A
-12-
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A
Class PT2-II-1 (5) $ N/A N/A N/A
Class PT2-II-2A (6) $ Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $ N/A N/A N/A
Class PT2-II-3A (6) $ Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $ N/A N/A N/A
Class PT2-II-4A (6) $ Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $ N/A N/A N/A
Class PT2-II-5A (6) $ Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $ N/A N/A N/A
Class PT2-II-6A (6) $ Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $ N/A N/A N/A
Class PT2-II-7A (6) $ Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $ N/A N/A N/A
Class PT2-II-8A (6) $ Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $ N/A N/A N/A
Class PT2-II-9A (6) $ Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $ N/A N/A N/A
Class PT2-II-10A (6) $ Class PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $ N/A N/A N/A
Class PT2-II-11A (6) $ Class PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $ N/A N/A N/A
Class PT2-II-12A (6) $ Class PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $ N/A N/A N/A
Class PT2-II-13A (6) $ Class PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $ N/A N/A N/A
Class PT2-II-14A (6) $ Class PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $ N/A N/A N/A
Class PT2-II-15A (6) $ Class PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $ N/A N/A N/A
Class PT2-II-16A (6) $ Class PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $ N/A N/A N/A
Class PT2-II-17A (6) $ Class PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $ N/A N/A N/A
Class PT2-II-18A (6) $ Class PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $ N/A N/A N/A
Class PT2-II-19A (6) $ Class PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $ N/A N/A N/A
Class PT2-II-20A (6) $ Class PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $ N/A N/A N/A
-13-
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-II-21A (6) $ Class PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $ N/A N/A N/A
Class PT2-II-22A (6) $ Class PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $ N/A N/A N/A
Class PT2-II-23A (6) $ Class PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $ N/A N/A N/A
Class PT2-II-24A (6) $ Class PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $ N/A N/A N/A
Class PT2-II-25A (6) $ Class PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $ N/A N/A N/A
Class PT2-II-26A (6) $ Class PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $ N/A N/A N/A
Class PT2-II-27A (6) $ Class PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $ N/A N/A N/A
Class PT2-II-28A (6) $ Class PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $ N/A N/A N/A
Class PT2-II-29A (6) $ Class PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $ N/A N/A N/A
Class PT2-II-30A (6) $ Class PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $ N/A N/A N/A
Class PT2-II-31A (6) $ Class PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $ N/A N/A N/A
Class PT2-II-32A (6) $ Class PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $ N/A N/A N/A
Class PT2-II-33A (6) $ Class PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $ N/A N/A N/A
Class PT2-II-34A (6) $ Class PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ N/A N/A N/A
Class PT2-II-35A (6) $ Class PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $ N/A N/A N/A
Class PT2-II-36A (6) $ Class PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $ N/A N/A N/A
Class PT2-II-37A (6) $ Class PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $ N/A N/A N/A
Class PT2-II-38A (6) $ Class PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $ N/A N/A N/A
Class PT2-II-39A (6) $ Class PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $ N/A N/A N/A
Class PT2-II-40A (6) $ Class PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $ N/A N/A N/A
Class PT2-II-41A (6) $ Class PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $ N/A N/A N/A
-14-
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-II-42A (6) $ Class PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $ N/A N/A N/A
Class PT2-II-43A (6) $ Class PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $ N/A N/A N/A
Class PT2-II-44A (6) $ Class PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $ N/A N/A N/A
Class PT2-II-45A (6) $ Class PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $ N/A N/A N/A
Class PT2-II-46A (6) $ Class PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $ N/A N/A N/A
Class PT2-II-47A (6) $ Class PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $ N/A N/A N/A
Class PT2-II-48A (6) $ Class PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ N/A N/A N/A
Class PT2-II-49A (6) $ Class PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ N/A N/A N/A
Class PT2-II-50A (6) $ Class PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ N/A N/A N/A
Class PT2-II-51A (6) $ Class PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ N/A N/A N/A
Class PT2-II-52A (6) $ Class PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ N/A N/A N/A
Class PT2-II-53A (6) $ Class PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ N/A N/A N/A
Class PT2-II-54A (6) $ Class PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ N/A N/A N/A
Class PT2-II-55A (6) $ Class PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ N/A N/A N/A
Class PT2-II-56A (6) $ Class PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ N/A N/A N/A
Class PT2-II-57A (6) $ Class PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ N/A N/A N/A
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A
-15-
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A
-16-
Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 Initial Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier REMIC-2 Principal REMIC-2 IO REMIC-1 Crossover
REMIC-2 Interest Interest Rate Amount Interest Regular Interest Distribution Date
------------------ ------------- --------------- ------------------- ---------------- -----------------
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A
Class PT2-R (8) (8) N/A N/A N/A
----------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group I Mortgage Loans and having
an "A" in their class designation, provided that, on each Distribution Date
on which interest is distributable on the Corresponding Pooling-Tier
REMIC-2 IO Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear
interest at a per annum rate equal to Swap LIBOR subject to a maximum rate
equal to the weighted average of the Pooling-Tier REMIC-1 Interest Rates on
the Pooling-Tier REMIC-1 Regular Interests relating to the Group I Mortgage
Loans and having an "A" in their class designation.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group I Mortgage Loans and having
a "B" in their class designation.
(4) Each Pooling-Tier REMIC-2 IO Interest is an interest-only interest and does
not have a principal balance but has a notional balance ("Pooling-Tier
REMIC-2 IO Notional Balance") equal to the Pooling-Tier REMIC-1 Principal
Amount of the Corresponding Pooling-Tier REMIC-1 Regular Interest. From the
Closing Date through and including the Corresponding Actual Crossover
Distribution Date, each Pooling-Tier REMIC-2 IO Interest shall be entitled
to receive interest that accrues on the Corresponding Pooling-Tier REMIC-1
Regular Interest at a rate equal to the excess, if any, of (i) the
Pooling-Tier REMIC-1 Interest Rate for the Corresponding Pooling-Tier
REMIC-1 Regular Interest over (ii) Swap LIBOR. After the related
Corresponding Actual Crossover Distribution Date, the Pooling-Tier REMIC-2
IO Interest shall not accrue interest.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group II Mortgage Loans and
having an "A" in their class designation, provided that, on each
Distribution Date on which interest is distributable on the Corresponding
Pooling-Tier REMIC-2 IO Interest, this Pooling-Tier REMIC-2 Regular
Interest shall bear interest at a per annum rate equal to Swap LIBOR
subject to a maximum rate equal to the weighted average of the Pooling-Tier
REMIC-1 Interest Rates on the Pooling-Tier REMIC-1 Regular Interests
relating to the Group II Mortgage Loans and having an "A" in their class
designation.
(7) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group II Mortgage Loans and
having a "B" in their class designation.
(8) The Class PT2-R Interest shall not have a principal balance and shall not
bear interest.
-17-
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling-Tier REMIC-2 Regular Interests at the Pooling-Tier REMIC-2 Interest
Rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the then outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the Pooling-Tier REMIC-2 IO Interests) relating to the Group I Mortgage
Loans with the lowest numerical denomination until the Pooling-Tier REMIC-2
Principal Amount of such interest is reduced to zero, provided that, for
Pooling-Tier REMIC-2 Regular Interests relating to the Group I Mortgage Loans
with the same numerical denomination, such Realized Losses, Subsequent
Recoveries and payments of principal shall be allocated pro rata between such
Pooling-Tier REMIC-2 Regular Interests, until the Pooling-Tier REMIC-2 Principal
Amount of such interests is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans to the
outstanding Pooling-Tier REMIC-2 Regular Interests (other than the Pooling-Tier
REMIC-2 IO Interests) relating to the Group II Mortgage Loans with the lowest
numerical denomination until the Pooling-Tier REMIC-2 Principal Amount of such
interest is reduced to zero, provided that, for Pooling-Tier REMIC-2 Regular
Interests relating to the Group II Mortgage Loans with the same numerical
denomination, such Realized Losses, Subsequent Recoveries and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests until the Pooling-Tier REMIC-2 Principal Amount of such interests is
reduced to zero.
-18-
Lower Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower-Tier REMIC and
shall be represented by the Class R Certificates.
Lower Tier Corresponding
Lower Tier REMIC REMIC Interest Initial Lower Tier Upper Tier REMIC
Class Designation Rate REMIC Principal Amount Regular Interest
----------------- -------------- ------------------------------- ----------------
Class LT-A-1A (1) 1/4 Corresponding Upper Tier A-1A
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-1B (1) 1/4 Corresponding Upper Tier A-1B
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-2A (1) 1/4 Corresponding Upper Tier A-2A
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-2B (1) 1/4 Corresponding Upper Tier A-2B
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-2C (1) 1/4 Corresponding Upper Tier A-2C
REMIC Regular Interest initial
Class Principal Balance
Class LT-M-1 (1) 1/4 Corresponding Upper Tier M-1
REMIC Regular Interest initial
Class Principal Balance
Class LT-M-2 (1) 1/4 Corresponding Upper Tier M-2
REMIC Regular Interest initial
Class Principal Balance
Class LT-M-3 (1) 1/4 Corresponding Upper Tier M-3
REMIC Regular Interest initial
Class Principal Balance
Class LT-B-1 (1) 1/4 Corresponding Upper Tier B-1
REMIC Regular Interest initial
Class Principal Balance
Class LT-B-2 (1) 1/4 Corresponding Upper Tier B-2
REMIC Regular Interest initial
Class Principal Balance
Class LT-B-3 (1) 1/4 Corresponding Upper Tier B-3
Regular Interest initial
Class Principal Balance
Class LT-B-4 (1) 1/4 Corresponding Upper Tier B-4
REMIC Regular Interest initial
Class Principal Balance
-19-
Lower Tier Corresponding
Lower Tier REMIC REMIC Interest Initial Lower Tier Upper Tier REMIC
Class Designation Rate REMIC Principal Amount Regular Interest
----------------- -------------- ------------------------------- ----------------
Class LT-Accrual (1) __ Pool Stated Principal Balance N/A
plus __ Subordinated Amount
Class LT- (1) __% initial Group Subordinate N/A
Group I(SUB) Amount of the Group I Mortgage
Loans (6)
Class LT- (2) __% initial aggregate Stated N/A
Group I Principal Balance of the Group I
Mortgage Loans (6)
Class LT- (1) __% initial Group Subordinate N/A
Group II(SUB) Amount of the Group II Mortgage
Loans (6)
Class LT- (3) __% initial aggregate Stated N/A
Group II Principal Balance of the Group
II Mortgage Loans (6)
Class LT-XX (1) 1/2 initial aggregate Stated N/A
Principal Balance of the Mortgage
Loans, less aggregate Initial
Lower Tier REMIC Principal
Amounts of
Class LT-Group I(SUB),
Class LT-Group I,
Class LT-Group II(SUB) and
Class LT-Group II Interests
Class LT-IO (4) (4) N/A
Class LT-R (5) (5) N/A
----------
(1) The interest rate with respect to any Distribution Date for these interests
is a per annum variable rate equal to the Lower Tier REMIC WAC Cap.
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a percentage
rounded to eight decimal places) equal to the weighted average of the
pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2 Regular
Interests (other than the Pooling-Tier REMIC-2 IO Interests) relating to
the Group I Mortgage Loans.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests)
relating to the Group II Mortgage Loans.
(4) This Lower-Tier Regular Interest is an interest-only interest and does not
have a Lower-Tier REMIC Principal Amount. On each Distribution Date, this
Lower-Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling-Tier REMIC-2 IO Interests.
(5) The Class LT-R Interest is the sole class of residual interest in the Lower
Tier REMIC and it does not have a principal amount or an interest rate.
-20-
(6) For all Distribution Dates, the Lower Tier Principal Amount of these Lower
Tier REMIC Regular Interests shall be rounded to eight decimal places.
Each Lower Tier REMIC Regular Interest is hereby designated as a
regular interest in the Lower Tier REMIC. The Class LT-A-1A, Class LT-A-1B,
Class LT-A-2A, Class LT-A-2B, Class LT-A-2C, Class LT-M-1, Class LT-M-2, Class
LT-M-3, Class LT-B-1, Class LT-B-2, Class LT-B-3 and Class LT-B-4 Interests are
hereby designated the LT Accretion Directed Classes (the "LT Accretion Directed
Classes").
On each Distribution Date, __% of the increase in the Subordinated
Amount shall be payable as a reduction of the Lower Tier REMIC Principal Amount
of the LT Accretion Directed Classes (each such Class will be reduced by an
amount equal to __% of any increase in the Subordinated Amount that is
attributable to a reduction in the Class Certificate Balance of its
Corresponding Class) and shall be accrued and added to the Lower Tier REMIC
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower Tier REMIC Principal Amount of the Class LT-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class LT-Accrual Interest. All payments of scheduled principal and prepayments
of principal generated by the Mortgage Loans and all Subsequent Recoveries
allocable to principal shall be allocated (i) __% to the Class LT-Accrual
Interest, (ii) __% to the LT Accretion Directed Classes (such principal payments
and Subsequent Recoveries shall be allocated among such LT Accretion Directed
Classes in an amount equal to __% of the principal amounts and Subsequent
Recoveries allocated to their respective Corresponding Classes), until paid in
full and (iii) __% to Class LT-Group I(SUB) Interest, Class LT-Group I Interest,
Class LT-Group II(SUB) Interest, Class LT-Group II Interest and Class LT-XX
Interest (and further allocated among these Lower Tier REMIC Regular Interests
in the manner described in the next sentence). As among the Class LT-Group
I(SUB) Interest, Class LT-Group I Interest, Class LT-Group II(SUB) Interest,
Class LT-Group II Interest and Class LT-XX Interest, all payments of scheduled
principal and prepayments of principal generated by the Mortgage Loans and
Subsequent Recoveries referred to in clause (iii) of the previous sentence shall
be allocated (i) first, to the Class LT-Group I(SUB) Interest, and Class
LT-Group II(SUB) Interest, each from the related Loan Group, so that their
respective Lower Tier REMIC Principal Amount (computed to at least eight decimal
places) is equal to __% of the related Group Subordinate Amount (except that if
any such amount is a larger number than in the preceding distribution period,
the least amount of principal shall be distributed to the Class LT-Group I(SUB)
Interest and Class LT-Group II(SUB) Interest, as applicable, such that the Lower
Tier REMIC Subordinated Balance Ratio is maintained); (ii) second, to the Class
LT-Group I Interest and the Class LT-Group II Interest __% of the principal
collected in respect of the related Loan Group; and (iii) third, any remaining
amounts of principal shall be distributed to the Class LT-XX Interest.
Notwithstanding the above, principal payments allocated to the Class X Interest
that result in the reduction in the Subordinated Amount shall be allocated (i)
__% to the Class LT-Accrual Interest (until paid in full) and (ii) __% to the
Class LT-Group I(SUB) Interest, the Class LT-Group II(SUB) Interest, the Class
LT-Group I Interest, the Class LT-Group II Interest and the Class LT-XX Interest
(and allocated among these Lower Tier REMIC Regular Interests in a manner
similar to that described in the immediately preceding sentence).
-21-
Reductions to Lower Tier REMIC Principal Amounts as a result of
Realized Losses and increases in Lower Tier REMIC Principal Amounts as a result
of Subsequent Recoveries shall be applied so that after all distributions have
been made on each Distribution Date (i) the Lower Tier REMIC Principal Amount of
each LT Accretion Directed Class is equal to __% of the Class Certificate
Balance of its Corresponding Class, (ii) the Class LT-Accrual Interest is equal
to __% of the aggregate Stated Principal Balance of the Mortgage Loans plus __%
of the Subordinated Amount, (iii) the Class LT-Group I(SUB) Interest is equal to
__% of the Group Subordinate Amount of the Group I Mortgage Loans, (iv) the
Class LT-Group II(SUB) Interest is equal to __% of the Group Subordinate Amount
of the Group II Mortgage Loans, (v) the Class LT-Group I Interest is equal to
0.01% of the aggregate Stated Principal Balance of the Group I Mortgage Loans,
(vi) the Class LT-Group II Interest is equal to __% of the aggregate Stated
Principal Balance of the Group II Mortgage Loans and (vii) the remainder shall
be applied to the Class LT-XX Interest.
Upper-Tier REMIC
The Upper Tier REMIC shall issue the following classes of Upper Tier
REMIC Regular Interests and each such interest, other than the Class UT-R
Interest, is hereby designated as a regular interest in the Upper Tier REMIC.
The Class UT-R Interest is hereby designated as the sole class of residual
interests in the Upper Tier REMIC and shall be represented by the Class R
Certificates.
Initial Upper Tier
Upper Tier REMIC Upper Tier REMIC REMIC Principal Corresponding
Class Designation Interest Rate Amount Class of Certificates
----------------- ---------------- ------------------- ---------------------
Class A-1A (1) $ Class A-1A
Class A-1B (1) $ Class A-1B
Class A-2A (2) $ Class A-2A
Class A-2B (2) $ Class A-2B
Class A-2C (2) $ Class A-2C
Class M-1 (3) $ Class M-1
Class M-2 (3) $ Class M-2
Class M-3 (3) $ Class M-3
Class B-1 (3) $ Class B-1
Class B-2 (3) $ Class B-2
Class B-3 (3) $ Class B-3
Class B-4 (3) $ Class B-4
Class IO (4) (4)
Class X (5) $ Class X(5)
Class UT-R (6) $ Class R
----------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the Group I Loan Cap) for the Corresponding
Class of Certificates and (ii) the Lower-Tier Interest Rate for the Class
LT-Group I Interest (the "Upper-Tier REMIC Loan Group I Rate").
(2) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the Group II Loan Cap) for the Corresponding
Class
-22-
of Certificates and (ii) the Lower-Tier Interest Rate for the Class
LT-Group II Interest (the "Upper-Tier REMIC Loan Group II Rate").
(3) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the applicable WAC Cap) for the Corresponding
Class of Certificates and (ii) the Upper-Tier REMIC Pool Cap Rate.
(4) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class IO Interest shall be entitled
to receive all interest distributable on the Class LT-IO Interest. This
interest shall be beneficially owned by the holders of the Class X
Certificates and shall be held as an asset of the Swap Account.
(5) The Class X Interest has an initial principal balance of $[________] but it
will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the Lower Tier Principal Amounts of the Lower Tier REMIC Regular Interests
(other than the Class LT-IO Interest) as of the first day of the related
Interest Accrual Period. With respect to any Interest Accrual Period, the
Class X Interest shall bear interest at a rate equal to the excess, if any,
of the Lower Tier REMIC WAC Cap over the product of (i) 2 and (ii) the
weighted average Lower Tier REMIC Interest Rate of the Lower Tier REMIC
Regular Interests (other than Class LT-Group I(SUB), Class LT-Group I,
Class LT-Group II(SUB), Class LT-Group II, Class LT-XX and Class LT-IO
Interests), where the Lower Tier REMIC Interest Rate on the Class
LT-Accrual Interest is subject to a cap equal to zero and each LT-Accretion
Directed Class is subject to a cap equal to the Upper Tier Interest Rate on
its Corresponding Class of Upper Tier Regular Interest. With respect to any
Distribution Date, interest that so accrues on the notional principal
balance of the Class X Interest shall be deferred in an amount equal to any
increase in the Subordinated Amount on such Distribution Date. Such
deferred interest shall not itself bear interest.
(6) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower-Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper-Tier REMIC at the rates shown above,
provided that the Class IO Interest shall be entitled to receive interest before
any other interest in the Upper-Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper-Tier
Interests until the outstanding principal balance of each such interest equals
the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Certificates
Class Pass-Through Class Certificate
Class Designation Rate Balance
----------------- ------------------ -----------------
Class A-1A(8) (1) $
Class A-1B(8) (1) $
Class A-2A(8) (2) $
Class A-2B(8) (3) $
Class A-2C(8) (4) $
Class M-1(8) (5) $
Class M-2(8) (5) $
Class M-3(8) (5) $
Class B-1(8) (5) $
Class B-2(8) (5) $
-23-
Class Pass-Through Class Certificate
Class Designation Rate Balance
----------------- ------------------ -----------------
Class B-3(8) (5) $
Class B-4(8) (5) $
Class X (6) (6)
Class R (7) $
----------
(1) The Class A-1A and Class A-1B Certificates will bear interest during each
Interest Accrual Period at a per annum rate equal to the lesser of (i)
LIBOR plus the applicable Pass-Through Margin and (ii) the Group I Loan
Cap.
(2) The Class A-2A Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR plus the
applicable Pass-Through Margin and (ii) the Group II Loan Cap.
(3) The Class A-2B Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR plus the
applicable Pass-Through Margin and (ii) the Group II Loan Cap.
(4) The Class A-2C Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR plus the
applicable Pass-Through Margin and (ii) the Group II Loan Cap.
(5) The Class M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3 and
Class B-4 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR plus the
applicable Pass-Through Margin and (ii) the Pool Cap.
(6) The Class X Certificates will represent beneficial ownership of the Class X
Interest, the Class IO Interest, the right to receive Class IO Shortfalls,
the Cap Agreements, amounts in the Swap Account, subject to the obligation
to pay Net Swap Payments and Upper Tier Carry Forward Amounts and, without
duplication, Basis Risk Carry Forward Amounts and amounts in the Excess
Reserve Fund Account, subject to the obligation to make payments from the
Excess Reserve Fund Account in respect of Basis Risk Carry Forward Amounts.
For federal income tax purposes, the Securities Administrator will treat a
Class X Certificateholder's obligation to make payments of Upper Tier Carry
Forward Amounts and, without duplication, Basis Risk Carry Forward Amounts
to the LIBOR Certificates from the Excess Reserve Fund Account and the Swap
Account to the LIBOR Certificateholders as payments made pursuant to an
interest rate cap contract written by the Class X Certificateholders in
favor of each Class of LIBOR Certificates. Such rights of the Class X
Certificateholders and LIBOR Certificateholders shall be treated as held in
a portion of the Trust Fund that is treated as a grantor trust under
subpart E, Part I of subchapter J of the Code. The Class X Certificates do
not have a Class Certificate Balance.
(7) The Class R Certificates do not have a principal balance or an interest
rate.
(8) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper Tier REMIC Regular Interest but also the right
to receive payments from the Excess Reserve Fund Account and Swap Account
in respect of any Basis Risk Carry Forward Amounts and, without
duplication, from the Swap Account in respect of Upper Tier Carry Forward
Amounts. Each of these Certificates will also be subject to the obligation
to pay Class IO Shortfalls as described in Section 8.13. For federal income
tax purposes, any amount distributed on the LIBOR Certificates on any such
Distribution Date in excess of the amount distributable on their
Corresponding Class of Upper Tier Regular Interest on such Distribution
Date shall be treated as having been paid from the Excess Reserve Fund
Account or the Swap Account, as applicable, and any amount distributable on
such Corresponding Class of Upper Tier Regular Interest on such
Distribution Date in excess of the amount distributable on the LIBOR
Certificates on such Distribution Date shall be treated as having been paid
to the Swap Account, all pursuant to, and as further provided in Section
8.13. For federal income tax purposes, the Securities Administrator will
treat a LIBOR Certificateholder's right to receive payments from the Excess
Reserve Fund Account and Swap Account as payments made pursuant to an
interest rate cap contract written by the Class X Certificateholders.
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The minimum denomination for each Class of Certificates, other than
the Class P, Class R and the Class X Certificates, will be $______ with integral
multiples of $__ in excess thereof except that one Certificate in each Class may
be issued in a different amount. The minimum denomination for each of the Class
P and Class X Certificates will be a __% Percentage Interest in such Class, and
the minimum denomination for the Class R Certificates shall be __% Percentage
Interest in such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates.............. All Classes of Certificates other
than the Physical Certificates.
Class A Certificates................. Class A-1A, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇,
▇▇▇▇▇ ▇-▇▇ and Class A-2C Certificates.
Class B Certificates................. Class B-1, Class B-2, Class B-3 and Class
B-4 Certificates.
Class M Certificates................. Class M-1, Class M-2 and Class M-3
Certificates.
Delay Certificates................... None.
ERISA-Restricted
Certificates...................... Class B-4, Class R, Class P and Class X
Certificates; any certificate with a
rating below the lowest applicable
permitted rating under the Underwriters'
Exemption.
LIBOR Certificates................... Class A and Subordinated Certificates.
Non-Delay Certificates............... Class A, Class X and Subordinated
Certificates.
Offered Certificates................. All Classes of Certificates other than
the Private Certificates.
Physical Certificates................ Class P, Class X and Class R
Certificates.
Private Certificates................. Class A-1A, Class B-4, Class P, Class X
and Class R Certificates.
Rating Agencies...................... Moody's, Fitch, Standard & Poor's and
DBRS.
Regular Certificates................. All Classes of Certificates other than
the Class P and Class R Certificates.
Residual Certificates................ Class R Certificates.
Subordinated Certificates............ Class M and Class B Certificates.
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices set forth in Section 3.01(a) of this
Agreement.
Account: Any of the Collection Account, the Distribution Account,
any Escrow Account, the Swap Account or the Excess Reserve Fund Account. Each
Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of LIBOR Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class' share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Additional Form 10-D Disclosure: As defined in Section 8.12(b).
Additional Form 10-K Disclosure: As defined in Section 8.12(c).
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and at any
time, the per annum rate equal to the Mortgage Rate less the Expense Fee Rate.
Adjustment Date: As to any Adjustable Rate Mortgage Loan, the first
Due Date on which the related Mortgage Rate adjusts as set forth in the related
Mortgage Note and each Due Date thereafter on which the Mortgage Rate adjusts as
set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 10.11.
Advancing Person: The Person to whom the Servicer's rights under
this Agreement to be reimbursed for any P&I Advances or Servicing Advances have
been assigned pursuant to Section 10.11.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" 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.
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Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on any
Distribution Date, the aggregate amount held in the Collection Account at the
close of business on the related Determination Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and
Subsequent Recoveries on the Mortgage Loans received after the end of the
related Prepayment Period and (ii) all Scheduled Payments on the Mortgage Loans
due after the end of the related Due Period.
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Securities Administrator by the
Depositor.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
LIBOR Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans, to the extent received by the Securities Administrator (x) the
sum of (i) all scheduled installments of interest (net of the related Expense
Fees) and principal due on the Due Date on such Mortgage Loans in the related
Due Period and received by the Servicer on or prior to the related Determination
Date, together with any P&I Advances in respect thereof; (ii) all Condemnation
Proceeds, Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries
received by the Servicer during the related Prepayment Period (in each case, net
of unreimbursed expenses incurred in connection with a liquidation or
foreclosure and unreimbursed Advances, if any); (iii) all partial or full
prepayments on the Mortgage Loans received by the Servicer during the related
Prepayment Period together with all Compensating Interest paid by the Servicer
in connection therewith (excluding any Prepayment Charges); (iv) all
Substitution Adjustment Amounts with respect to substitutions of Mortgage Loans
that occur on or prior to the related Determination Date; (v) all amounts
received with respect to such Distribution Date as the Repurchase Price in
respect of a Mortgage Loan repurchased on or prior to the related Determination
Date; and (vi) the proceeds with respect to the termination of the Trust Fund
pursuant to clause (a) of Section 9.01; reduced by (y) amounts in reimbursement
for Advances previously made with respect to the Mortgage Loans and other
amounts as to which the Servicer, the Depositor or the Trustee are entitled to
be paid or reimbursed pursuant to this Agreement.
Balloon Loan: Any Mortgage Loan that requires only payments of
interest until the stated maturity date of the Mortgage Loan or Scheduled
Payments of principal (not including
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the payment due on its stated maturity date) that are based on an amortization
schedule that would be insufficient to fully amortize the principal thereof by
the stated maturity date of the Mortgage Loan.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Subordinated Amount, if any, for such
Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon a Group Loan Cap or the Pool Cap, as applicable, the excess of (i)
the Accrued Certificate Interest Distribution Amount such Class of Certificates
would otherwise be entitled to receive on such Distribution Date had such rate
been calculated as the sum of LIBOR and the applicable Pass-Through Margin on
such Class of Certificates for such Distribution Date, over (ii) the Accrued
Certificate Interest Distribution Amount payable on such Class of Certificates
at, with respect to the Class A-1A and Class A-1B Certificates, the Group I Loan
Cap, with respect to the Class A-2A, Class A-2B and Class A-2C Certificates, the
Group II Loan Cap, and with respect to each other Class of LIBOR Certificates,
the Pool Cap, as applicable, for such Distribution Date and (B) the portion of
any such excess described in clause (A) for such Class of Certificates from all
previous Distribution Dates not previously paid, together with interest thereon
at a rate equal to the sum of LIBOR and the applicable Pass-Through Margin for
such Class of Certificates for such Distribution Date.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for amounts paid from the Excess Reserve Fund Account to pay any Basis
Risk Carry Forward Amount or any Swap Termination Payment).
Best's: Best's Key Rating Guide, as the same shall be amended from
time to time.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the State of New
York, ________, ________ or ________, (b) the State in which the Servicer's
servicing operations are located, or (c) any State in which the Corporate Trust
Office is located, are authorized or obligated by law or executive order to be
closed.
Cap Agreements: The Class M Cap Agreement and the Class B Cap
Agreement.
Cap Provider: ___________, a ___________, and its successors in
interest.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
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Certificate Balance: With respect to any Class of Certificates,
other than the Class X, Class P or Class R Certificates, at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the Denomination thereof minus all
distributions of principal previously made with respect thereto and in the case
of any Certificates, reduced by any Applied Realized Loss Amounts allocated to
such Class of Certificates pursuant to Section 4.05; provided, however, that
immediately following the Distribution Date on which a Subsequent Recovery is
distributed, the Class Certificate Balances of any Class or Classes of
Certificates that have been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recovery distributed on such Distribution Date (up to the amount of Unpaid
Realized Loss Amount for such Class or Classes for such Distribution Date). The
Class P, Class X and Class R Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Securities Administrator is entitled to
rely conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: The Group I Class A Certificates or the
Group II Class A Certificates, as applicable.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Allocation Percentage: With respect to any
Distribution Date, the percentage equivalent of a fraction, determined as
follows: (A) with respect to the Group I Class A Certificates, a fraction, the
numerator of which is (x) the portion of the Principal Remittance Amount for
such Distribution Date that is attributable to the principal received or
advanced on the Group I Mortgage Loans and the denominator of which is (y) the
Principal Remittance Amount for such Distribution Date; and (B) with respect to
the Group II Class A Certificates, a fraction, the numerator of which is (x) the
portion of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on
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the Group II Mortgage Loans and the denominator of which is (y) the Principal
Remittance Amount for such Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) __% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date and (B) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date over
$______.
Class A-1A Certificates: All Certificates bearing the class
designation of "Class A-1A".
Class A-1B Certificates: All Certificates bearing the class
designation of "Class A-1B".
Class A-2B Certificates: All Certificates bearing the class
designation of "Class A-2B".
Class A-2C Certificates: All Certificates bearing the class
designation of "Class A-2C".
Class B Cap Agreement: The interest rate cap agreement, dated
___________, 200___, between the Cap Provider and the Securities Administrator,
relating to the Class B Certificates, a copy of which is attached hereto as
Exhibit U.
Class B Certificates: As specified in the Preliminary Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1".
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date) and (E) the Class Certificate Balance of the Class B-1
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) _____% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over $______.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2".
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Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (E) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount for such Distribution Date) and (I) the Class
Certificate Balance of the Class B-2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) ____% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over $3,608,680.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3".
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (E) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount for such Distribution Date), (I) the Class
Certificate Balance of the Class B-2 Certificates (after taking into account the
distribution of the Class B-2 Principal Distribution Amount for such
Distribution Date) and (J) the Class Certificate Balance of the Class B-3
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) ____% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over $______.
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for that Distribution
Date), (b) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for that Distribution Date), (c) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for that Distribution Date), (d) the Class
Certificate Balance of the Class M-3
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Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for that Distribution Date), (e) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount for that
Distribution Date), (f) the Class Certificate Balance of the Class B-2
Certificates (after taking into account the distribution of the Class B-2
Principal Distribution Amount for that Distribution Date), (g) the Class
Certificate Balance of the Class B-3 Certificates (after taking into account the
distribution of the Class B-3 Principal Distribution Amount for that
Distribution Date) and (h) Class Certificate Balance of the Class B-4
Certificates immediately prior to that Distribution Date over (ii) the lesser of
(a) approximately ______% of the aggregate Stated Principal Balance of the
mortgage loans for that Distribution Date and (b) the excess, if any, of the
aggregate Stated Principal Balance of the mortgage loans for that Distribution
Date over $______.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfalls: As defined in Section 8.13. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class X Certificates in respect of amounts due to the Swap
Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class X Interest (prior to
reduction for any Basis Risk Payment or Swap Termination Payments) on such
Distribution Date, all as further provided in Section 8.13.
Class LT-R Interest: The sole class of "residual interest" in the
Lower Tier REMIC evidenced by the Class R Certificates.
Class M Cap Agreement: The interest rate cap agreement, dated
_______, 200___, between the Cap Provider and the Securities Administrator,
relating to the Class M Certificates, a copy of which is attached hereto as
Exhibit T.
Class M Certificates: As specified in the Preliminary Statement.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1".
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A)
________% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over $______.
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Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2".
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) ________% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over $______.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3".
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date) and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) ______% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over $______.
Class P Certificates: All Certificates bearing the class designation
of "Class P".
Class PT1-R Interest: The residual interest in Pooling-Tier REMIC-1
as described in the Preliminary Statement and the related footnote thereto.
Class PT2-R Interest: The residual interest in Pooling-Tier REMIC-2
as described in the Preliminary Statement and the related footnote thereto.
Class R Certificates: All Certificates bearing the class designation
of "Class R".
Class UT-R Interest: The sole class of "residual interest" in the
Upper Tier REMIC evidenced by the Class R Certificate.
Class X Certificates: All Certificates bearing the class designation
of "Class X".
Class X Distributable Amount: On any Distribution Date, the sum of
(i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class X Interest (as set forth in the Preliminary Statement) and
not applied as an Extra Principal Distribution
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Amount on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus (without duplication) (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class X Interest which is distributable as a Subordination Reduction Amount,
minus (iii) any amounts paid from the Excess Reserve Fund Account to pay any
Basis Risk Carry Forward Amount or any Swap Termination Payment.
Class X Interest: The Upper Tier REMIC Regular Interest
represented by the Class X Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Closing Date: ________, 200_.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of any date and as to any
Second-Lien Mortgage Loan, the ratio (expressed as a percentage) of the (a) sum
of (i) the outstanding principal balance of the Second-Lien Mortgage Loan and
(ii) the outstanding principal balance as of such date of any mortgage loan or
mortgage loans that are senior or equal in priority to the Second-Lien Mortgage
Loan and which are secured by the same Mortgaged Property to (b) (i) in the case
of a purchase, the lesser of (A) the sale price of the Mortgaged Property and
(B) the lesser of (y) its appraised value at the time of sale or (z) the
appraised value determined by a review appraisal conducted by the Responsible
Party, or (ii) in the case of a refinancing or modification, the lesser of (A)
the appraised value of the Mortgaged property at the time of the refinancing or
modification or (B) the appraised value determined by a review appraisal
conducted by the Responsible Party.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, the lesser of (a)
the amount, if any, by which the Prepayment Interest Shortfall, if any, for such
Distribution Date, with respect to voluntary Principal Prepayments (excluding
any payments made upon liquidation of any Mortgage Loan) exceeds all Prepayment
Interest Excesses for such Distribution Date, and (b) the amount of the
Servicing Fee payable to the Servicer for such Distribution Date.
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.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Corporate Trust Office: (i) When used with respect to the Trustee,
the designated office of the Trustee at which at any particular time its
corporate trust business with respect to
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this Agreement is administered, which office at the date of the execution of
this Agreement is located at __________________________, Attention:
______________, SABR 200__-__, and which is the office to which notices to and
correspondence with the Trustee should be directed, and (ii) when used with
respect to the Securities Administrator, the designated office of the Securities
Administrator located (i) for purposes of Certificate transfers, at ___________,
_______________________, Attention: ___________ - ____________ and (ii) for all
other purposes, at ______________________________, Attention:
__________________, facsimile no. ____________, and which is the address to
which notices to and correspondence with the Securities Administrator should be
directed.
Corresponding Actual Crossover Distribution Date: For each
Pooling-Tier REMIC-2 IO Interest, the related Corresponding Scheduled Crossover
Distribution Date, unless on such date two times the aggregate Pooling-Tier
REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2 IO Interest then
outstanding is less than the scheduled swap notional amount of the Interest Rate
Swap Agreement applicable for such Distribution Date, in which case the
Corresponding Actual Crossover Distribution Date for such Pooling-Tier REMIC-2
IO Interest shall be the first Distribution Date thereafter on which two times
the Pooling-Tier REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2
IO Interest then outstanding is greater than or equal to the scheduled swap
notional amount of the Interest Rate Swap Agreement.
Corresponding Class: The class of interests in the Lower-Tier REMIC
or Upper-Tier REMIC created under this Agreement that corresponds to the Class
of interests in the other such REMIC, as applicable, or to a Class of
Certificates in the manner set out below:
Corresponding Corresponding
Lower Tier REMIC Upper Tier REMIC Corresponding Class
Class Designation Regular Interest of Certificates
----------------- ---------------- -------------------
Class LT-A-1A Class A-1A Class A-1A
Class LT-A-1B Class A-1B Class A-1B
Class LT-A-2A Class A-2A Class A-2A
Class LT-A-2B Class A-2B Class A-2B
Class LT-A-2C Class A-2C Class A-2C
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
Class LT-B-4 Class B-4 Class B-4
N/A Class X Class X
Corresponding Pooling-Tier REMIC-1 Regular Interest: As described in
the Preliminary Statement.
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Corresponding Pooling-Tier REMIC-2 IO Interest: As described in the
Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling-Tier REMIC-2 IO Interest.
Corresponding Upper Tier REMIC Regular Interest: As defined in the
Preliminary Statement.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Cumulative Loss Percentage: With respect to any Distribution Date,
the percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses incurred from the Cut-off Date to the last day of the
calendar month preceding the month in which such Distribution Date occurs and
the denominator of which is the Cut-off Date Pool Principal Balance of the
Mortgage Loans.
Cumulative Loss Trigger Event: If, with respect to any Distribution
Date, the quotient (expressed as a percentage) of (x) the aggregate amount of
Realized Losses incurred since the Cut-off Date through the last day of the
related Due Period, divided by (y) the Cut-off Date Pool Principal Balance,
exceeds the applicable Cumulative Loss Percentages set forth below with respect
to such Distribution Date:
Distribution Date
Occurring In Cumulative Loss Percentage
------------------------------- -----------------------------------------------------------
______ 20__ through ______ 20__ __% for the first month, plus an additional 1/12th of
__% for each month thereafter (e.g., __% in September 20__)
______ 20__ through ______ 20__ __% for the first month, plus an additional 1/12th of
__% for each month thereafter (e.g., __% in September 20__)
______ 20__ through ______ 20__ __% for the first month, plus an additional 1/12th of
__% for each month thereafter (e.g., __% in September 20__)
______ 20__ through ______ 20__ __% for the first month, plus an additional 1/12th of
__% for each month thereafter (e.g., __% in September 20__)
______ 20__ and thereafter __%
Custodial File: As defined in Section 2.01(b).
Custodian: ___________ , a __________, and its successors and
assigns, in its capacity as Custodian hereunder, and if any successor custodian
is appointed hereunder, such successor.
Cut-off Date: _________, 200_.
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Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Data Tape Information: With respect to each Mortgage Loan, the
following information as of the Cut-off Date provided by the Responsible Party
to the Sponsor: (1) the applicable Originator's Mortgage Loan identifying
number; (2) the Mortgagor's name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code indicating whether
the Mortgagor is self-employed; (5) as to each Mortgage Loan, the Stated
Principal Balance as of the Cut-off Date; (6) the Index; (7) a code indicating
whether the Mortgaged Property is owner-occupied; (8) the number and type of
residential units constituting the Mortgaged Property; (9) the original stated
months to maturity; (10) the original amortization months to maturity; (11) the
stated maturity date; (12) the amount of the Scheduled Payment as of the Cut-off
Date; (13) the first date on which the Scheduled Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date; (14) the "paid through date" based on payments received from the
related Mortgagor; (15) the original principal amount of the Mortgage Loan; (16)
with respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Rate;
(17) with respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage
Rate; (18) with respect to each Adjustable Rate Mortgage Loan, the initial
Periodic Mortgage Rate Cap; (19) with respect to each Adjustable Rate Mortgage
Loan, the subsequent Periodic Mortgage Rate Cap; (20) with respect to each
Adjustable Rate Mortgage Loan, the first payment Adjustment Date immediately
following the Cut-off Date; (21) with respect to each Adjustable Rate Mortgage
Loan, the first Interest Rate Adjustment Date immediately following the Cut-off
Date; (22) with respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(23) with respect to each Adjustable Rate Mortgage Loan, the Mortgage Rate
adjustment period; (24) the type of Mortgage Loan (i.e., Fixed Rate or
Adjustable Rate Mortgage Loan); (25) lien position (i.e., First-Lien or
Second-Lien Mortgage Loan); (26) a code indicating the purpose of the loan
(i.e., purchase, rate and term refinance, equity take-out refinance); (27) the
credit risk score (FICO score); (28) the loan credit grade classification (as
described in the underwriting guidelines); (29) the Mortgage Rate at
origination; (30) the value of the Mortgaged Property; (31) a code indicating
the term and amount of Prepayment Charges applicable to such Mortgage Loan
(including any prepayment penalty term), if any; (32) with respect to each
First-Lien Mortgage Loan, the Loan-to-Value Ratio at origination, and with
respect to each Second-Lien Mortgage Loan, the Combined Loan-to-Value Ratio at
origination; (33) the documentation level; (34) the date of origination; (35) a
code indicating whether the Mortgage Loan is a Balloon Loan; (36) the Due Date
for the first Scheduled Payment; (37) the original Scheduled Payment due; (38)
the debt-to-income ratio with respect to the Mortgage Loan; (39) the Mortgage
Rate calculation method (i.e., 30/360, simple interest, other); (40) a code
indicating whether the Mortgage Loan is Home Loan; (41) appraisal verification
(Y/N); (42) type of appraisal verification, if any; (43) the applicable
Originator's name; (44) the applicable Servicer's name; and (45) with respect to
Second-Lien Mortgage Loans, the outstanding principal balance of the superior
lien at origination. With respect to the Mortgage Loans in the aggregate, the
Data Tape Information shall set forth the following information, as of the
Cut-off Date: (1) the number of Mortgage Loans; (2) the current aggregate
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outstanding principal balance of the Mortgage Loans; (3) the weighted average
Mortgage Rate of the Mortgage Loans; and (4) the weighted average maturity of
the Mortgage Loans.
DBRS: Dominion Bond Rating Service. If DBRS is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 10.05(c) the
address for notices to DBRS shall be Dominion Bond Rating Service, ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ________, or such other address
as DBRS may hereafter furnish to the Depositor, the Trustee , the Securities
Administrator and the Servicer.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement )) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
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 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Trigger Event: With respect to any Distribution Date,
the circumstances in which the quotient (expressed as a percentage) of (x) the
rolling three month average of the Stated Principal Balances of 60+ Day
Delinquent Mortgage Loans, divided by (y) the aggregate Stated Principal Balance
of the Mortgage Loans, as of the last day of the related Due Period, equals or
exceeds __% of the prior period's Senior Enhancement Percentage.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: BCAP LLC, a direct wholly owned subsidiary of Barclays
Bank PLC, a public limited company registered in England and Wales under company
number 1026167, and its successors in interest.
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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 Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee and the Securities Administrator, that (a) is incorporated
under the laws of the United States of America or any State thereof, (b) is
subject to supervision and examination by federal or state banking authorities
and (c) has outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated "P-1" by Moody's, "F1+" by Fitch, "A-1" by
Standard & Poor's and, if rated by DBRS, "R-1" by DBRS (in each case, to the
extent they are designated as Rating Agencies in the Preliminary Statement).
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Remittance Date, the ____
day (or if such day is not a Business Day, the immediately preceding Business
Day) in the calendar month in which such Remittance Date occurs.
Disqualified Non-U.S. Person: With respect to a Class R Certificate,
(i) any Non-U.S. Person or agent thereof other than a Non-U.S. Person that holds
the Class R 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 IRS Form W-8ECI, (ii) any domestic entity
classified as a partnership under the Code, any of its direct or indirect
partners (other than through a U.S. corporation) which are Disqualified Non-U.S.
Persons, unless such Person described in (i) or (ii) above has delivered to both
the transferor, the Securities Administrator and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the transfer of the Class R
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R
Certificate will not be disregarded for federal income tax purposes.
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.07(d) in the
name of the Securities Administrator for the benefit of the Certificateholders
and designated "___________________ in trust for registered holders of BCAP LLC
Trust 200__-__ __________ Mortgage Pass-Through Certificates, Series 200__-__".
Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date,
12:00 noon New York City time on the third Business Day immediately preceding
such Distribution Date.
Distribution Date: The ____ day of each calendar month, or if such
day is not a Business Day, the next succeeding Business Day, commencing in
________, 200__.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
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Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
such Distribution Date occurs and ending on the first day of the calendar month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account acceptable to
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Securities Administrator. Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated "A-1+" by Standard & Poor's if
the amounts on deposit are to be held in the account for no more than 365 days
(or at least "A-2" by Standard & Poor's if the amounts on deposit are to be held
in the account for no more than 30 days), or the long-term unsecured debt
obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicer and the Securities Administrator) (in each case, to the extent
they are designated as Rating Agencies in the Preliminary Statement).
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b).
Event of Default: As defined in Section 7.01.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Sections 3.07(b) and
3.07(c) in the name of the Securities Administrator for the benefit of the
Regular Certificateholders and designated
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"______________________ in trust for registered holders of BCAP LLC Trust
200__-__, Mortgage Pass-Through Certificates, Series 200__-__". Funds in the
Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Excess Subordinated Amount: With respect to any Distribution Date,
the excess, if any, of (a) the Subordinated Amount on such Distribution Date
over (b) the Specified Subordinated Amount for such Distribution Date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate, the Securities Administrator Fee Rate and
the Loan Performance Advisor Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing
Fee, the Securities Administrator Fee and the Loan Performance Advisor Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Subordination Deficiency for such Distribution Date.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association, or any
successor thereto.
▇▇▇▇▇▇ Mae Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇ Mae
Servicers' Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Responsible Party as contemplated by this Agreement), a determination
made by the Servicer that all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries which the Servicer, in its
reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Servicer shall maintain records, prepared by
a Servicing Officer, of each Final Recovery Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
December 2035.
First-Lien Mortgage Loan: A Mortgage Loan secured by a first-lien
Mortgage on the related Mortgaged Property.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(c) the address for notices to Fitch shall be Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
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MBS Monitoring - BCAP LLC Trust 200__-__, or such other address as Fitch may
hereafter furnish to the Depositor and the Servicer.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
Form 8-K Disclosure Information: As defined in Section 8.12(g).
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, 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 to be added
to the applicable Index to determine the Mortgage Rate.
Group I Class A Certificates: The Class A-1A and Class A-1B
Certificates.
Group I Loan Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) the weighted
average of the Adjusted Net Mortgage Rates then in effect on the beginning of
the related Due Period on the Group I Mortgage Loans minus the product of (A)
the Net Swap Payment plus any Swap Termination Payment (other than a Defaulted
Swap Termination Payment) made to the Swap Provider, if any, expressed as a
percentage equal to a fraction, the numerator of which is equal to the Net Swap
Payment plus any Swap Termination Payment (other than a Defaulted Swap
Termination Payment) made to the Swap Provider and the denominator of which is
equal to the aggregate Stated Principal Balance of the Mortgage Loans at the
beginning of such Due Period and (B) 12 and (ii) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Interest Accrual Period.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Class A Certificates: The Class A-2A Certificates, the
Class A-2B Certificates and the Class A-2C Certificates, collectively.
Group II Loan Cap: With respect to the Group II Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) the weighted
average of the Adjusted Net Mortgage Rates then in effect on the beginning of
the related Due Period on the Group II Mortgage Loans minus the product of (A)
the Net Swap Payment plus any Swap Termination Payment (other than a Defaulted
Swap Termination Payment) made to the Swap Provider, if any, expressed as a
percentage equal to a fraction, the numerator of which is equal to the Net Swap
Payment plus any Swap Termination Payment (other than a Defaulted Swap
Termination Payment) made to the Swap Provider and the denominator of which is
equal to the aggregate Stated Principal Balance of the Mortgage Loans at the
beginning of such Due Period and (B) 12 and (ii) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Interest Accrual Period.
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Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
Group Loan Cap: The Group I Loan Cap or the Group II Loan Cap, as
applicable.
Group Subordinate Amount: For any Distribution Date and (i) for the
Group I Mortgage Loans, the excess of the aggregate Stated Principal Balance of
the Group I Mortgage Loans as of the beginning of the related Due Period over
the Class Certificate Balance of the Class A-1 Certificates immediately prior to
the current Distribution Date and (ii) for the Group II Mortgage Loans, the
excess of the aggregate Stated Principal Balance of the Group II Mortgage Loans
as of the beginning of the related Due Period over the aggregate Class
Certificate Balance of the Class A-2A, Class A-2B and Class A-2C Certificates
immediately prior to such Distribution Date.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," "high risk home," or "predatory" loan under any other
applicable federal, state or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees) or (c) a Mortgage Loan categorized as High Cost
pursuant to Appendix E of Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Index: As to each Adjustable Rate Mortgage Loan, the index from time
to time in effect for the adjustment of the Mortgage Rate set forth as such on
the related Mortgage Note.
Initial Certification: As defined in Section 2.02.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of Non-Delay
Certificates and the Corresponding Class of Lower Tier REMIC Regular Interests
and any Distribution Date, the period commencing on the Distribution Date
occurring in the month preceding the month in which the current Distribution
Date occurs and ending on the day immediately preceding the current Distribution
Date (or, in the case of the first Distribution Date, the period from and
including the Closing Date to but excluding such first Distribution Date). For
purposes of computing interest accruals on each Class of Non-Delay Certificates,
each Interest Accrual Period has the actual number of days in such month and
each year is assumed to have 360 days.
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Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the Mortgage
Loan Schedule, on which the Mortgage Rate is adjusted.
Interest Rate Cap Payment: With respect to each Cap Agreement and
for any Distribution Date, the amount, if any, required to be paid by the Cap
Provider on such Distribution Date under such Cap Agreement.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of ________, 200__ between the Swap Provider and the Securities
Administrator, a copy of which is attached hereto as Exhibit T.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest relating to Mortgage Loans in that Loan Group.
Investment Account: As defined in Section 3.12(a).
IRS: The Internal Revenue Service.
Late Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received after the Determination Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, Subsequent Recoveries or
otherwise, which represent late payments or collections of principal and/or
interest due (without regard to any acceleration of payments under the related
Mortgage and Mortgage Note) but delinquent for such Due Period and not
previously recovered.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar loans to
leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
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LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified to the Trustee that it has received all amounts it
expects to receive in connection with the liquidation of such Mortgage Loan
including the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a Liquidated Mortgage Loan, whether through a trustee's sale,
foreclosure sale or otherwise.
Loan Group: The Group I Mortgage Loans or the Group II Mortgage
Loans, as applicable.
Loan Performance Advisor: ___________, a _____________, and its
successors in interest, and if a successor loan performance advisor is appointed
hereunder, such successor.
Loan Performance Advisor Agreement: The Loan Performance Advisor
Agreement, dated as of __________, 200_, by and between the Sponsor and the Loan
Performance Advisor.
Loan Performance Advisor Fee: As to any Distribution Date, an amount
equal to the product of (a) one-twelfth of the Loan Performance Advisor Fee Rate
and (b) the aggregate Stated Principal Balance of the Mortgage Loans as of the
preceding Distribution Date or, in the case of the first Distribution Date, the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date;
provided, however that the Loan Performance Advisor Fee for any Distribution
Date shall not be lower than $______.
Loan Performance Advisor Fee Rate: With respect to each Mortgage
Loan, either (a) _____% per annum or (b) if the Loan Performance Advisor Fee is
the amount calculated pursuant to the proviso in the definition of "Loan
Performance Advisor Fee", a per annum rate determined by dividing such fee by
the average of the aggregate Stated Principal Balance of the Mortgage Loans as
of the preceding Distribution Date.
Loan-to-Value Ratio or LTV: As of any date and as to any First-Lien
Mortgage Loan, the ratio (expressed as a percentage) of the outstanding
principal balance of the First-Lien Mortgage Loan to (a) in the case of a
purchase, the lesser of (i) the sale price of the Mortgaged Property and (ii)
the lesser of (y) its appraised value at the time of sale or (z) the appraised
value determined by a review appraisal conducted by the Responsible Party, or
(b) in the case of a refinancing or modification, the lesser of (i) the
appraised value of the Mortgaged Property at the time of the refinancing or
modification or (ii) the appraised value determined by a review appraisal
conducted by the Responsible Party.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
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▇▇▇▇▇ ▇▇▇▇ REMIC Interest Rate: As described in the Preliminary
Statement.
Lower Tier REMIC Regular Interest: Each of the Class LT-A-1A, Class
▇-▇▇, ▇▇▇▇▇ ▇▇-▇-▇▇, ▇▇▇▇▇ ▇▇-▇-▇▇, Class LT-A-2C, Class LT-M-1, Class LT-M-2,
Class LT-M-3, Class LT-B-1, Class LT-B-2, Class LT-B-3, Class LT-B-4, Class
LT-Group I (SUB), Class LT-Group I, Class LT-Group II (SUB), Class LT-Group II,
Class LT-XX, Class LT-IO and Class LT-Accrual Interests as described in the
Preliminary Statement.
Lower Tier REMIC: As described in the Preliminary Statement.
Lower-Tier REMIC Principal Amount: The principal balance of each
Lower Tier REMIC Regular Interest, determined as set forth in the Preliminary
Statement. The Lower-Tier REMIC Principal Amount shall be computed to at least
eight (8) decimal places.
Lower Tier REMIC Subordinated Balance Ratio: The ratio between the
Lower Tier REMIC Principal Amounts of the Class LT-Group I(SUB) Interest and
Class LT-Group II(SUB) Interest, equal to the ratio between the Group
Subordinate Amount of the Group I Mortgage Loans and the Group Subordinate
Amount of the Group II Mortgage Loans, respectively.
Lower Tier REMIC WAC Cap: A per annum variable rate equal to the
weighted average of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier
REMIC-2 Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests).
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Maximum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, a rate that (i) is set forth on the Data Tape Information and in the
related Mortgage Note and (ii) is the maximum interest rate to which the
Mortgage Rate on such Adjustable Rate Mortgage Loan may be increased during the
lifetime of such Adjustable Rate Mortgage Loan.
Minimum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, a rate that (i) is set forth on the Data Tape Information and in the
related Mortgage Note and (ii) is the minimum interest rate to which the
Mortgage Rate on such Adjustable Rate Mortgage Loan may be decreased during the
lifetime of such Adjustable Rate Mortgage Loan.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.03.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. If ▇▇▇▇▇'▇ is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 10.05(c)
the address for notices to Moody's shall be ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage
Pass-Through Group, or such other address as Moody's may hereafter furnish to
the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
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Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Loan: An individual Mortgage Loan that is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the Scheduled Payments, Principal
Prepayments, Liquidation Proceeds, Subsequent Recoveries, Condemnation Proceeds,
Insurance Proceeds, REO Disposition proceeds, Prepayment Charges, and all other
rights, benefits, proceeds and obligations arising from or in connection with
such Mortgage Loan, excluding replaced or repurchased Mortgage Loans.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Trustee and the Securities Administrator and referred to as Schedule I, such
schedule setting forth, for each Loan Group, the Data Tape Information with
respect to each Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne on a Mortgage Note,
which shall be adjusted from time to time in the case of an Adjustable Rate
Mortgage Loan.
Mortgage Rate Caps: With respect to an Adjustable Rate Mortgage
Loan, the Periodic Mortgage Rate Cap, the Maximum Mortgage Rate, and the Minimum
Mortgage Rate for such Mortgage Loan.
Mortgaged Property: With respect to each Mortgage Loan, the real
property (or leasehold estate, if applicable) identified on the Mortgage Loan
Schedule as securing repayment of the debt evidenced by the related Mortgage
Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date, the amount
remaining for distribution pursuant to Section 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds Compensating Interest payments made with respect to
such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) payable by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
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NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X and Class P Certificates that are rated by any Rating
Agency.
NIM Trustee: The trustee for the NIM Securities.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Permitted Transferee: A Person other than a Permitted
Transferee.
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Servicer, will not or, in the case of a
proposed P&I Advance, would not be ultimately recoverable from related Late
Collections on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in accordance with Accepted Servicing Practices, will not or, in the case
of a proposed Servicing Advance, would not be ultimately recoverable from
related Late Collections.
Non-U.S. Person: A person that is not a U.S. Person.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of the
Servicer with responsibility for the servicing of the Mortgage Loans and listed
on a list delivered to the Trustee and the Securities Administrator pursuant to
this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or any Subservicer, reasonably acceptable to
the Persons to whom such opinion is to be delivered in accordance with the
provisions of this Agreement, provided, that any Opinion of Counsel relating to
(a) qualification of any Trust REMIC or (b) compliance with the REMIC
Provisions, must be (unless otherwise stated in such Opinion of Counsel) an
opinion of counsel who (i) is in fact independent of the Servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect financial
interest in the Servicer of the Mortgage Loans or in an Affiliate of the
Servicer and (iii) is not connected with the Servicer of the Mortgage Loans as
an officer, employee, director or person performing similar functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to __% or less of the Cut-off Date Pool
Principal Balance.
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Originator: _____, a _____________, and its successors in interest.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the
Securities Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any advance
made by the Servicer in respect of any Remittance Date representing the
aggregate of all payments of principal and interest, net of the Servicing Fee,
that were due during the related Due Period on the Mortgage Loans and that were
delinquent on the related Determination Date, plus certain amounts representing
assumed payments not covered by any current net income on the Mortgaged
Properties acquired by foreclosure or deed in lieu of foreclosure as determined
pursuant to Section 4.01.
Pass-Through Margin: With respect to each Class of Regular
Certificates, the following percentages: Class A-1A Certificates, ___%; Class
A-1B Certificates, ___%; Class A-2A Certificates, ___%; Class A-2B Certificates,
___%; Class A-2C Certificates, ___%; Class M-1 Certificates, ___%; Class M-2
Certificates, ___%; Class M-3 Certificates, ___%; Class B-1 Certificates, ___%;
Class B-2 Certificates, ___%; Class B-3 Certificates, ___% and Class B-4
Certificates, ___%. On the first Distribution Date after the Optional
Termination Date, the Pass-Through Margins shall increase to: Class A-1A
Certificates, ___%; Class A-1B Certificates, ___%; Class A-2A Certificates,
___%; Class A-2B Certificates, ___%; Class A-2C Certificates, ___%; Class M-1
Certificates, ___%; Class M-2 Certificates, ___%; Class M-3 Certificates, ___%;
Class B-1 Certificates, ___%; Class B-2 Certificates, ___%; Class B-3
Certificates, ___% and Class B-4 Certificates, ___%.
Pass-Through Rate: For each Class of Certificates, each Class of
Upper Tier REMIC Regular Interest and each Class of Lower Tier REMIC Regular
Interest, the per annum rate set forth or calculated in the manner described in
the Preliminary Statement.
PCAOB: The Public Company Accounting Oversight Board.
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Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the periodic limit on each Mortgage Rate adjustment as set forth
in the related Mortgage Note.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee, the Securities Administrator or
any of their respective Affiliates:
(i) 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;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original maturity
of not more than 90 days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or
a remaining maturity of more than 30 days) denominated in United
States dollars and issued by, any Depository Institution and rated
"F1+" by Fitch, "A-1+" by S&P, "P-1" by Moody's and "R-1 by DBRS (in
each case, to the extent they are designated as Rating Agencies in
the Preliminary Statement);
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United States of America or any state thereof and that are rated by
S&P and Moody's (in each case, to the extent they are designated as
Rating Agencies in the Preliminary Statement), and by each other
Rating Agency that rates such securities in its highest long-term
unsecured rating categories at the time of such investment or
contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date
of acquisition thereof) that is rated by S&P and Moody's (in each
case, to the extent they are designated as Rating Agencies in the
Preliminary Statement), and by each other Agency that rates such
securities in its highest short-term unsecured debt rating available
at the time of such investment;
(vi) units of money market funds, including money market funds
managed or advised by the Depositor, the Trustee, the Securities
Administrator or an Affiliate thereof, that have been rated "Aaa" by
Moody's, "AAAm" or
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"AAAm-G" by Standard & Poor's and, if rated by Fitch, at least "AAA"
by Fitch and "R-1" by DBRS (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement); and
(vii) 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 of the Rating Agencies as a permitted investment of funds
backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income from a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of ▇▇▇▇▇▇▇ Mac, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Cap: With respect to the Mortgage Loans as of any Distribution
Date, the product of a per annum rate equal to (i) the weighted average of (x)
the Adjusted Net Mortgage Rates for the Group I Mortgage Loans and (y) the
Adjusted Net Mortgage Rates for the Group II Mortgage Loans then in effect on
the beginning of the related Due Period, in each case weighted on the basis of
the related Group Subordinate Amount, minus the product of (A) the Net Swap
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Payment plus any Swap Termination Payment (other than a Defaulted Swap
Termination Payment) made to the Swap Provider, if any, expressed as a
percentage equal to a fraction, the numerator of which is equal to the Net Swap
Payment plus any Swap Termination Payment (other than a Defaulted Swap
Termination Payment) made to the Swap Provider and the denominator of which is
equal to the aggregate Stated Principal Balance of the Mortgage Loans at the
beginning of such Due Period and (B) 12 and (ii) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Interest Accrual Period. For federal income tax purposes, the economic
equivalent of the Pool Cap shall be expressed as the weighted average of the
Lower Tier REMIC Interest Rate on (a) the Class LT-Group I(SUB), subject to a
cap and floor equal to the Lower Tier REMIC Interest Rate of the Class LT-Group
I Interest and (b) the Class LT-Group II(SUB), subject to a cap and floor equal
to the Lower Tier REMIC Interest Rate of the Class LT-Group II Interest,
weighted on the basis of the respective Lower Tier REMIC Principal Amounts of
the Class LT-Group I(SUB) and Class LT-Group II(SUB), respectively.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Pooling-Tier Interest Rate: As specified in the Preliminary
Statement.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Loan Group I WAC Rate: With respect to the
Group I Mortgage Loans as of any Distribution Date, the weighted average of the
Adjusted Net Mortgage Rates then in effect on the beginning of the related Due
Period on the Group I Mortgage Loans multiplied by (b) 30 divided by the actual
number of days in the related Interest Accrual Period.
Pooling-Tier REMIC-1 Loan Group II WAC Rate: With respect to the
Group II Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Adjusted Net Mortgage Rates then in effect on
the beginning of the related Due Period on the Group II Mortgage Loans
multiplied by (b) 30 divided by the actual number of days in the related
Interest Accrual Period.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
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Pooling-Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Prepayment Charge: Any prepayment premium, penalty or charge
collected by the Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any Principal Prepayment pursuant to the terms of the related
Mortgage Note.
Prepayment Interest Excess: With respect to any Distribution Date,
any interest collected by the Servicer with respect to any Mortgage Loan
serviced by the Servicer as to which a Principal Prepayment in Full occurs from
the 1st day of the month through the 15th day of the month in which such
Distribution Date occurs and that represents interest that accrues from the 1st
day of such month to the date of such Principal Prepayment in Full.
Prepayment Interest Shortfall: With respect to any Distribution
Date, the sum of, for each Mortgage Loan that was, during the portion of the
related Prepayment Period from the first day of such Prepayment Period through
the last day of the month preceding the month in which such Distribution Date
occurs, the subject of a Principal Prepayment which is not accompanied by an
amount equal to one month of interest that would have been due on such Mortgage
Loan on the Due Date that occurs during such Prepayment Period and which was
applied by the Servicer to reduce the outstanding principal balance of such
Mortgage Loan on a date preceding such Due Date, an amount equal to the product
of (a) the Mortgage Rate net of the Servicing Fee Rate for such Mortgage Loan,
(b) the amount of the Principal Prepayment for such Mortgage Loan, (c) 1/360 and
(d) the number of days commencing on the date on which such Principal Prepayment
was applied and ending on the last day of the calendar month in which the
related Prepayment Period begins.
Prepayment Period: With respect to any Distribution Date and any
Principal Prepayments in Full, the period from and including the 16th day of the
month preceding the month in which such Distribution Date occurs (or, in the
case of the first Distribution Date, from the Cut-off Date) to and including the
15th day of the month in which such Distribution Date occurs. With respect to
each Distribution Date and Principal Prepayments that are not Principal
Prepayments in Full, the calendar month preceding the month in which the related
Distribution Date occurs.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, excluding any Prepayment
Charge thereon and which is not
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accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each Scheduled Payment of principal on a
Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date, (ii) all Principal Prepayments received during the
related Prepayment Period; (iii) all net Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds on the Mortgage Loans allocable to principal,
and all Subsequent Recoveries, actually collected by the Servicer during the
related Prepayment Period; (iv) the portion of the Repurchase Price allocable to
principal with respect to each Mortgage Loan repurchased on or prior to the
related Determination Date; and (v) all Substitution Adjustment Amounts
allocable to principal with respect to the substitutions of Mortgage Loans that
occur on or prior to the related Determination Date; (vi) the allocable portion
of the proceeds received with respect to the termination of the Trust Fund
pursuant to clause (a) of Section 9.01 (to the extent such proceeds relate to
principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated _________,
200_, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of _________, 200_, between the Responsible Party and the
Sponsor.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. References herein to a given rating or rating category
of a Rating Agency shall mean such rating category without giving effect to any
modifiers. For purposes of Section 10.05(c), the addresses for notices to each
Rating Agency shall be the address specified therefor in the definition
corresponding to the name of such Rating Agency, or such other address as either
such Rating Agency may hereafter furnish to the Depositor, the Securities
Administrator, the Trustee and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the
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liquidation of such Liquidated Mortgage Loan and net of the amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date;
provided, however, that, for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, 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 (January 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, the third
Business Day immediately preceding such Distribution Date.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Rate net of the Servicing Fee
Rate that would have been applicable to the related Mortgage Loan had it been
outstanding) on the unpaid principal balance of the Mortgage Loan as of the date
of acquisition thereof (as such balance is reduced pursuant to Section 3.17 by
any income from the REO Property treated as a recovery of principal).
REO Mortgage Loan: A Mortgage Loan where title to the related
Mortgaged Property has been obtained by the Servicer in the name of the Trustee
on behalf of the Certificateholders.
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REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable Event: As defined in Section 8.12(g).
Repurchase Price: With respect to any Mortgage Loan, an amount equal
to the sum of (i) the unpaid principal balance of such Mortgage Loan as of the
date of repurchase, (ii) interest on such unpaid principal balance of such
Mortgage Loan at the Mortgage Rate from the last date through which interest has
been paid to the date of repurchase, (iii) all unreimbursed Servicing Advances
and (iv) all expenses incurred by the Securities Administrator arising out of
the Securities Administrator's enforcement of the applicable Person's repurchase
obligation hereunder or under the Sponsor Representation Letter.
Request for Release: The Request for Release submitted by the
Servicer to the Custodian, substantially in the form of Exhibit J.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any vice president, any assistant vice president, any
assistant secretary, any assistant treasurer, any associate, or any other
officer of the Trustee or the Securities Administrator 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,
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Agreement.
Responsible Party: _____, a ___________, and its successors in
interest.
Rule 144A Letter: As defined in Section 5.02(b).
Sarbanes Certification: As defined in Section 8.12(c).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Second-Lien Mortgage Loan: A Mortgage Loan secured by a second-lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: ___________ a ______________, and its
successors and assigns, in its capacity as Securities Administrator hereunder
and, if a successor securities administrator is appointed hereunder, such
successor.
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Securities Administrator Fee: With respect to any Distribution Date,
an amount equal to the product of (a) one-twelfth of the Securities
Administrator Fee Rate and (b) the Stated Principal Balance of the Mortgage
Loans as of the prior Distribution Date (or as of the Cut-off Date in the case
of the first Distribution Date).
Securities Administrator Fee Rate: With respect to each Mortgage
Loan, ___% per annum.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the Subordinated
Amount (in each case after taking into account the distribution of the Principal
Distribution Amount and any principal payments on such Classes from the Swap
Account for such Distribution Date) by (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, ___%.
Sequential Trigger Event: With respect to any Distribution Date (a)
before the ____ Distribution Date, the circumstances in which the aggregate
amount of Realized Losses incurred since the Cut-off Date through the last day
of the related Due Period divided by the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date exceeds ___%, or (b) on or after the
____ Distribution Date, if a Trigger Event is in effect.
Servicer: ___________ _______________, a ________________, and its
successors in interest, and if a successor servicer is appointed hereunder, such
successor.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer in the performance of
its servicing obligations in connection with a default, delinquency or other
unanticipated event, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of a Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures and
litigation, in respect of a particular Mortgage Loan, (iii) the management
(including reasonable fees in connection therewith) and liquidation of any REO
Property and (iv) the performance of its obligations under Sections 3.01, 3.09,
3.13 and 3.15. The Servicing Advances shall also include any reasonable
"out-of-pocket" costs and expenses (including legal fees) incurred by the
Servicer in connection with executing and recording instruments of satisfaction,
deeds of reconveyance or Assignments of Mortgage in connection with any
satisfaction or foreclosure in respect of any Mortgage Loan to the extent not
recovered from the Mortgagor or otherwise payable under this Agreement. The
Servicer shall not be required to make any Nonrecoverable Servicing Advances.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit P
hereto.
Servicing Fee: With respect to each Mortgage Loan and for any
calendar month, an amount equal to one-twelfth of the product of (a) the
Servicing Fee Rate and (b) the Stated
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Principal Balance of such Mortgage Loan. Such fee shall be payable monthly for
any month during which the Mortgage Loan is serviced by the Servicer under this
Agreement. The Servicing Fee is payable solely from the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
Subsequent Recoveries, Insurance Proceeds, Condemnation Proceeds and proceeds
received with respect to REO Properties) of such Scheduled Payment collected by
the Servicer, or as otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, ___%.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Custodian in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit K hereto.
Servicing Function Participant: As defined in Section 3.23(a).
Servicing Officer: Any employee or officer of the Servicer involved
in, or responsible for, the administration and servicing of the Mortgage Loans
whose name and facsimile signature appear on a list of servicing officers
furnished to the Trustee and the Securities Administrator by the Servicer on the
Closing Date pursuant to this Agreement, as such list may from time to time be
amended.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, each Mortgage Loan related to REO Property
and each Mortgage Loan where the related Mortgagor has filed for bankruptcy.
Specified Subordinated Amount: Prior to the Stepdown Date, an amount
equal to ___% of the Cut-off Date Pool Principal Balance. On and after the
Stepdown Date, an amount equal to ___% of the aggregate Stated Principal Balance
of the Mortgage Loans for such Distribution Date, subject, until the Class
Certificate Balance of each Class of LIBOR Certificates has been reduced to
zero, to a minimum amount equal to ___% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date; provided, however, that
if, on any Distribution Date, a Trigger Event exists, the Specified Subordinated
Amount shall not be reduced to the applicable percentage of the then current
aggregate Stated Principal Balance of the Mortgage Loans until the Distribution
Date on which a Trigger Event no longer exists. When the Class Certificate
Balance of each Class of LIBOR Certificates has been reduced to zero, the
Specified Subordinated Amount will thereafter equal zero.
Sponsor: _____________, a _____________, and its successors in
interest.
Sponsor Representation Letter: The letter agreement between the
Sponsor and Depositor, dated as of _________, 200_, a copy of which is attached
hereto as Exhibit X.
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Standard & Poor's: Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. If Standard & Poor's is designated as a Rating
Agency in the Preliminary Statement, for purposes of Section 10.05(c) the
address for notices to Standard & Poor's shall be Standard & Poor's, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage Surveillance
Group - BCAP LLC Trust 200__-__, or such other address as Standard & Poor's may
hereafter furnish to the Depositor and the Servicer.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received), minus (ii) all amounts previously remitted to
the Securities Administrator with respect to the related Mortgage Loan
representing payments or recoveries of principal including advances in respect
of scheduled payments of principal. For purposes of any Distribution Date, the
Stated Principal Balance of any Mortgage Loan will give effect to any scheduled
payments of principal received by the Servicer on or prior to the related
Determination Date or advanced by the Servicer for the related Remittance Date
and any unscheduled principal payments and other unscheduled principal
collections received during the related Prepayment Period, and the Stated
Principal Balance of any Mortgage Loan that has prepaid in full or has been
liquidated during the related Prepayment Period shall be zero.
Stepdown Date: The later to occur of (i) the earlier to occur of (a)
the Distribution Date in ______ 200_ and (b) the Distribution Date following the
Distribution Date on which the aggregate Class Certificate Balances of the Class
A Certificates have been reduced to zero and (ii) the first Distribution Date on
which the Senior Enhancement Percentage (calculated for this purpose only after
taking into account payments of principal on the Mortgage Loans applied to
reduce the Stated Principal Balance of the Mortgage Loans for the applicable
Distribution Date but prior to any applications of Principal Distribution Amount
to the Certificates on such Distribution Date) is greater than or equal to the
Senior Specified Enhancement Percentage.
Subcontractor: Any third-party or Affiliated vendor, subcontractor
or other Person utilized by the Servicer, a Subservicer or the Securities
Administrator, as applicable, that is not responsible for the overall servicing
(as "servicing" is commonly understood by participants in the mortgage-backed
securities market) of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to any of the Mortgage
Loans.
Subordinated Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the LIBOR Certificates as of such Distribution Date (after giving effect to
the payment of the Principal Remittance Amount on such Certificates on such
Distribution Date).
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Subordinated Certificates: As specified in the Preliminary
Statement.
Subordination Deficiency: With respect to any Distribution Date, the
excess, if any, of (a) the Specified Subordinated Amount applicable to such
Distribution Date over (b) the Subordinated Amount applicable to such
Distribution Date.
Subordination Reduction Amount: With respect to any Distribution
Date, an amount equal to the lesser of (a) the Excess Subordinated Amount and
(b) the Net Monthly Excess Cash Flow.
Subsequent Recovery: With respect to any Mortgage Loan or related
Mortgaged Property that became a Liquidated Mortgage Loan or was otherwise
disposed of, all amounts received in respect of such Liquidated Mortgage Loan
after an Applied Realized Loss Amount related to such Mortgage Loan or Mortgaged
Property is allocated to reduce the Class Certificate Balance of any Class of
Subordinated Certificates. Any Subsequent Recovery that is received during a
Prepayment Period will be included as part of the Principal Remittance Amount
for the related Distribution Date.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Servicer under
this Agreement, with respect to some or all of the Mortgage Loans, that are
identified in Item 1122(d) of Regulation AB.
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the
Responsible Party for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit J, (i) have a Stated Principal Balance, after deduction of all
Scheduled Payments due in the month of substitution, not in excess of the Stated
Principal Balance of the Deleted Mortgage Loan; (ii) be accruing interest at a
rate not lower than and not more than 1% higher than that of the Deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Mortgage Loan; (iv) be of the
same type as the Deleted Mortgage Loan; and (v) comply with each representation
and warranty set forth in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Swap Account: The trust account created pursuant to Section 4.06 of
this Agreement consisting of the Interest Rate Swap Agreement, the Class IO
Interest and the right to receive Class IO Shortfalls, subject to the obligation
to pay amounts specified in Section 4.06.
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the LIBOR Certificates
divided by (b) 30.
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Swap Provider: _____________, a _____________, and its successors in
interest.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the Class R Certificates
designated as "tax matters person" of each Trust REMIC, in the manner provided
under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess, if any, of (i) the interest on the Mortgage Loans (other
than Prepayment Interest Excesses) received by the Servicer on or prior to the
related Determination Date or advanced by the Servicer for the related
Remittance Date (net of Expense Fees) over (ii) the sum of (A) the amounts
payable to the Certificates pursuant to Section 4.02(a)(i) on such Distribution
Date and (B) any Net Swap Payments to the Swap Provider and (c) any Swap
Termination Payment to the Swap Provider.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: Either a Cumulative Loss Trigger Event or a
Delinquency Trigger Event.
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal with respect thereto
received on or after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or prior to the related Cut-off Date; (ii) the
Collection Account, Excess Reserve Fund Account, the Distribution Account, and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Cap Agreements;
(v) the Interest Rate Swap Agreement; (vi) the Swap Account; (vii) the Sponsor
Representation Letter; and (viii) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing.
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Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower-Tier REMIC or the Upper-Tier REMIC, as applicable.
Trustee: ___________ and its successors in interest and, if a
successor trustee is appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed under footnote 1 of,
and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to the
Purchase Agreement.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from Distribution Dates prior to the current Distribution
Date remaining unpaid immediately prior to the current Distribution Date and (b)
interest on the amount in clause (a) above at the applicable Pass-Through Rate
(to the extent permitted by applicable law).
Unpaid Realized Loss Amount: With respect to any Class of
Subordinated Certificates and as to any Distribution Date, is the excess of (i)
the Applied Realized Loss Amounts with respect to such Class over (ii) the sum
of (a) all distributions in reduction of such Applied Realized Loss Amounts on
all previous Distribution Dates, and (b) the amount by which the Class
Certificate Balance of such Class has been increased due to the distribution of
any Subsequent Recoveries on all previous Distribution Dates. Any amounts
distributed to a Class of Subordinated Certificates in respect of any Unpaid
Realized Loss Amount will not be applied to reduce the Class Certificate Balance
of such Class.
Upper Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC Loan Group I Rate: As described in the Preliminary
Statement.
Upper-Tier REMIC Loan Group II Rate: As described in the Preliminary
Statement.
Upper-Tier REMIC Pool Cap Rate: For any Distribution Date, the
weighted average of the Lower Tier REMIC Interest Rate on (a) the Class LT-Group
I(SUB), subject to a cap and floor equal to the Lower Tier REMIC Interest Rate
of the Class LT-Group I Interest and (b) the Class LT-Group II(SUB), subject to
a cap and floor equal to the Lower Tier REMIC Interest Rate of the Class
LT-Group II Interest, weighted on the basis of the respective Lower Tier REMIC
Principal Amounts of the Class LT-Group I(SUB) and Class LT-Group II(SUB),
respectively.
Upper Tier REMIC Regular Interest: As described in the Preliminary
Statement.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or
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under the laws of the United States or of any State thereof, including, for this
purpose, the District of Columbia; (iii) a partnership (or entity treated as a
partnership for tax purposes) organized in the United States or under the laws
of the United States or of any State thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United States
income tax purposes regardless of its source; or (v) a trust, if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more U.S. Persons have authority to
control substantial decisions of the trust. Notwithstanding the last clause of
the preceding sentence, to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996, and treated as U.S. Persons prior to
such date, may elect to continue to be U.S. Persons.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund. On the Closing Date, the Depositor shall pay,
without any right of reimbursement from the Trust, to the Cap Provider the
"Fixed Amount" (as defined in the related Cap Agreement) due and payable to the
Cap Provider pursuant to the terms of each Cap Agreement.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Custodian for
the benefit of the Certificateholders the following documents or instruments
with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note bearing all intervening endorsements
showing a complete chain of endorsement from the originator to the last
endorsee, endorsed "Pay to the order of _____________, without recourse"
and signed (which may be by facsimile signature) in the name of the last
endorsee by an authorized officer. To the extent that there is no room on
the face of the Mortgage Notes for endorsements, the endorsement may be
contained on an allonge;
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(ii) the original of any guarantee executed in connection with the
Mortgage Note;
(iii) the original Mortgage with evidence of recording thereon or a
certified true copy of such Mortgage submitted for recording. If, in
connection with any Mortgage Loan, the original Mortgage cannot be
delivered 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 Responsible Party shall deliver or cause to be
delivered to the Custodian a photocopy of such Mortgage, together with (A)
in the case of a delay caused by the public recording office, an Officer's
Certificate of the Responsible Party (or certified by the title company,
escrow agent, or closing attorney) 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 Custodian
upon receipt thereof by the Responsible Party; or (B) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage;
(iv) the originals of all assumption, modification, consolidation
and extension agreements, if any, with evidence of recording thereon;
(v) the original Assignment of Mortgage for each Mortgage Loan
endorsed in blank;
(vi) the originals of all intervening assignments of Mortgage (if
any) evidencing a complete chain of assignment from the applicable
originator to the last endorsee 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 Responsible
Party shall deliver or cause to be delivered a photocopy of such
intervening assignment, together with (A) in the case of a delay caused by
the public recording office, an Officer's Certificate of the Responsible
Party or a certificate from an escrow company, a title company or a
closing attorney 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 to be a true and complete copy of the
original recorded intervening assignment of Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Responsible Party;
or (B) in the case of an intervening assignment where a public recording
office retains the original recorded intervening assignment or in the case
where an intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by such
public recording office to be a true and complete copy of the original
recorded intervening assignment;
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(vii) the original mortgagee title insurance policy or, in the event
such original title policy is unavailable, a certified true copy of the
related policy binder or commitment for title certified to be true and
complete by the title insurance company;
(viii) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection
with the Mortgage (if provided); and
(ix) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power
certified by the Responsible Party to be a true and correct copy of the
original.
To the extent not previously delivered to the Sponsor pursuant to
this Purchase Agreement, the Responsible Party shall promptly upon receipt from
the respective recording office cause to be delivered to the Custodian the
original recorded document described in (iii), (iv) and (vi) above.
From time to time, the Responsible Party, the Depositor or the
Servicer, as applicable, shall forward to the Custodian, additional original
documents and additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan, in accordance with the terms of
this Agreement upon receipt of such documents. All such mortgage documents held
by the Custodian as to each Mortgage Loan shall constitute the "Custodial File".
To the extent not previously delivered to the Sponsor pursuant to
the applicable Purchase Agreement, on or prior to the Closing Date, the
Responsible Party shall deliver to the Custodian, Assignments of Mortgages, in
blank, for each Mortgage Loan. No later than thirty (30) Business Days following
the later of the Closing Date and the date of receipt by the Servicer of the
complete recording information for a Mortgage, the Servicer shall promptly
submit or cause to be submitted for recording, at the expense of the Responsible
Party and at no expense to the Trust Fund, the Custodian or the Depositor, in
the appropriate public office for real property records, each Assignment of
Mortgage referred to in Section 2.01(b)(v). Notwithstanding the foregoing,
however, for administrative convenience and facilitation of servicing and to
reduce closing costs, the Assignments of Mortgage shall not be required to be
completed and submitted for recording with respect to any Mortgage Loan if the
Custodian and each Rating Agency have received an Opinion of Counsel, at the
expense of the Trust and satisfactory in form and substance to the Custodian and
each Rating Agency, to the effect that the recordation of such Assignments of
Mortgage in any specific jurisdiction is not necessary to protect the Trustee's
interest in the related Mortgage Note. If the Assignment of Mortgage is to be
recorded, the Mortgage shall be assigned by the Responsible Party, at the
expense of the Responsible Party, to "___________, as trustee under the Pooling
and Servicing Agreement dated as of ________, 200__, BCAP LLC Trust 200__-__".
In the event that any such Assignment of Mortgage is lost or returned unrecorded
because of a defect therein, the Responsible Party shall promptly cause to be
delivered a substitute Assignment of Mortgage to cure such defect and thereafter
cause each such assignment to be duly recorded at no expense to the Trust Fund.
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In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within 180 days (or such other time period as may be required
by any Rating Agency) following the Closing Date, and in the event that the
Responsible Party does not cure such failure within 30 days of discovery or
receipt of written notification of such failure from the Depositor, the related
Mortgage Loan shall, upon the request of the Depositor, be repurchased by the
Responsible Party at the price and in the manner specified in Section 2.03. The
foregoing repurchase obligation shall not apply in the event that the
Responsible Party cannot deliver such original or copy of any document submitted
for recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided, that the Responsible Party shall instead deliver a
recording receipt of such recording office or, if such recording receipt is not
available, an officer's certificate of an officer of the Responsible Party,
confirming that such document has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the Custodian, prior to the Closing Date of a copy of
such Mortgage or assignment, as the case may be, certified (such certification
to be an original thereof) by the public recording office to be a true and
complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "BCAP LLC Trust 200__-__"
and ___________ is hereby appointed as Trustee in accordance with the provisions
of this Agreement. The parties hereto acknowledge and agree that it is the
policy and intention of the Trust to acquire only Mortgage Loans meeting the
requirements set forth in this Agreement, including without limitation, the
representation and warranty set forth in paragraph __ of Schedule III. The
Trust's fiscal year is the calendar year.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans and the Interest Rate Swap
Agreement) pursuant to Section 2.01(a). The Securities Administrator on behalf
of the Trust is hereby authorized to enter into the Cap Agreements and the
Interest Rate Swap Agreement.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Custodian shall acknowledge, on the Closing Date, receipt by it on behalf of the
Trustee, of the documents identified in the Initial Certification in the form
annexed hereto as Exhibit E ("Initial Certification"), and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, in trust for the exclusive use and benefit of all
present and future Certificateholders. The Custodian shall maintain possession
of the related Mortgage Notes in the States of ____, _____ or _____, unless
otherwise permitted by the Rating Agencies.
In connection with the Closing Date, the Custodian shall be required
to deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification
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prior to the Closing Date, or, as the Depositor agrees on the Closing Date,
certifying receipt of a Mortgage Note and Assignment of Mortgage for each
Mortgage Loan. The Custodian shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
Within 90 days after the Closing Date, the Custodian shall ascertain
that all documents identified in the Document Certification and Exception Report
in the form attached hereto as Exhibit F are in its possession, and shall
deliver to the Depositor and the Servicer a Document Certification and Exception
Report, in the form annexed hereto as Exhibit F, to the effect that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in such certification
as an exception and not covered by such certification): (i) all documents
identified in the Document Certification and Exception Report and required to be
reviewed by it are in its possession; (ii) such documents have been reviewed by
it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, the information
set forth in items (1), (2), (3), (15), (22) and (29) of the Data Tape
Information respecting such Mortgage Loan is correct; and (iv) each Mortgage
Note has been endorsed as provided in Section 2.01 of this Agreement. The
Custodian shall not be responsible to verify the validity, sufficiency or
genuineness of any document in any Custodial File.
The Custodian shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Custodian, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Responsible Party shall deliver to the Servicer copies of all
trailing documents required to be included in the Custodial File at the same
time the original or certified copies thereof are delivered to the Custodian,
including but not limited to such documents as the title insurance policy and
any other Mortgage Loan documents upon return from the public recording office.
The documents shall be delivered by the Responsible Party at the Responsible
Party's expense to the Servicer.
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party and the Servicer; Remedies for Breaches of Representations and
Warranties with Respect to the Mortgage Loans. (a) ___________________________
hereby makes the representations and warranties set forth in Schedule II hereto
to the Depositor and the Trustee, as of the Closing Date.
(b) ___________________________, in its capacity as Responsible
Party, hereby makes the representations and warranties, set forth in Schedule
III and Schedule IV hereto, to the Depositor, the Securities Administrator and
the Trustee, as of the Closing Date. The Depositor hereby makes the
representations and warranties set forth in Schedule V hereto to the Trustee and
Securities Administrator as of the dates set forth in such Schedule.
(c) It is understood and agreed by the Servicer and the Responsible
Party that the representations and warranties set forth in this Section 2.03
shall survive the transfer of the
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Mortgage Loans by the Depositor to the Trustee on the Closing Date, and shall
inure to the benefit of the Depositor and the Trustee notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by any of the Responsible Party, the Securities Administrator, the
Depositor, the Trustee, the Custodian or the Servicer of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the others. The Securities Administrator
shall enforce the rights of the Trust under the Sponsor Representation Letter.
(d) Within 30 days of the earlier of either discovery by or notice
to the Responsible Party that any Mortgage Loan does not conform to the
requirements as determined in the Custodian's review of the related Custodial
File or within 60 days of the earlier of either discovery by or notice to the
Responsible Party of any breach of a representation or warranty set forth in
Section 2.03(b) that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee, or the Certificateholders therein, the
Responsible Party shall use its best efforts to cause to be remedied a material
defect in a document constituting part of a Mortgage File or promptly to cure
such breach in all material respects and, if such defect or breach cannot be
remedied, the Responsible Party shall, at the Depositor's option as specified in
writing and provided to the Responsible Party, the Securities Administrator, the
Custodian and the Trustee, (i) if such 30- or 60-day period, as applicable,
expires prior to the second anniversary of the Closing Date, remove such
Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in
its place a Substitute Mortgage Loan, in the manner and subject to the
conditions set forth in this Section 2.03; or (ii) repurchase such Mortgage Loan
at the Repurchase Price; provided, however, that any such substitution pursuant
to clause (i) above shall not be effected prior to the delivery to the Custodian
of a Request for Release substantially in the form of Exhibit J, and the
delivery of the Mortgage File to the Custodian for any such Substitute Mortgage
Loan. Notwithstanding the foregoing, a breach (i) which causes a Mortgage Loan
not to constitute a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code, (ii) by the Responsible Party of any of the
representations and warranties set forth in clause ____, ____, ____, _____ and
_____ of Schedule III in each case, will be deemed automatically to materially
and adversely affect the value of such Mortgage Loan and the interests of the
Trustee and Certificateholders in such Mortgage Loan. In the event that the
Securities Administrator receives notice of a breach by the Responsible Party of
any of the representations and warranties set forth in clause ____, ____, ____,
_____ and _____ of Schedule III, the Securities Administrator shall give notice
of such breach to the Responsible Party and request the Responsible Party to
repurchase the Mortgage Loan at the Repurchase Price within sixty (60) days of
receipt by the Responsible Party of such notice. The Responsible Party shall
repurchase each such Mortgage Loan within 60 days of the earlier of discovery or
receipt of notice with respect to each such Mortgage Loan.
(e) With respect to any Substitute Mortgage Loan or Loans, the
Responsible Party shall deliver to the Custodian for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution under this Agreement is permitted to be made with
respect to any Distribution Date after the end of the related Prepayment Period.
Scheduled Payments due with respect to Substitute Mortgage Loans in the Due
Period of substitution shall
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not be part of the Trust Fund and will be retained by the Responsible Party on
the next succeeding Distribution Date. For the Due Period of substitution,
distributions to Certificateholders will include the Scheduled Payment due on
any Deleted Mortgage Loan for such Due Period and thereafter the Responsible
Party shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan.
(f) The Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loan or Loans and
the Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee and
the Securities Administrator. Upon such substitution, the Substitute Mortgage
Loan or Loans shall be subject to the terms of this Agreement in all respects,
and the Responsible Party shall be deemed to have made with respect to such
Substitute Mortgage Loan or Loans, as of the date of substitution, the
representations and warranties made pursuant to Section 2.03(b) with respect to
such Mortgage Loan. Upon any such substitution and the deposit to the Collection
Account of the amount required to be deposited therein in connection with such
substitution as described in the following paragraph, the Custodian shall
release the Mortgage File held for the benefit of the Certificateholders
relating to such Deleted Mortgage Loan to the Responsible Party and shall
execute and deliver at the Responsible Party's direction such instruments of
transfer or assignment prepared by the Responsible Party, in each case without
recourse, as shall be necessary to vest title in the Responsible Party, of the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
(g) For any month in which the Responsible Party substitutes one or
more Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Servicer will determine the amount (if any) by which the aggregate unpaid
principal balance of all such Substitute Mortgage Loans as of the date of
substitution is less than the aggregate unpaid principal balance of all such
Deleted Mortgage Loans. The amount of such shortage plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans (collectively, the "Substitution Adjustment Amount") shall be remitted by
the Responsible Party to the Servicer for deposit into the Collection Account on
or before the Distribution Account Deposit Date for the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
(h) In addition to such repurchase or substitution obligation
referred to in Section 2.03(d), the Responsible Party shall indemnify the
Depositor, any of its Affiliates, the Servicer, the Trustee, the Securities
Administrator and the Trust and hold such parties harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses (including, without
limitation, any taxes payable by the Trust) resulting from any third party
claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach by the Responsible Party of any of its representations and
warranties or obligations contained in this Agreement.
(i) The Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the Servicer shall deliver the amended Mortgage Loan Schedule
to the Trustee and the Securities Administrator.
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(j) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement or the Sponsor Representation Letter, the proceeds
from such repurchase shall be deposited by the Servicer in the Collection
Account pursuant to Section 3.10 on or before the Distribution Account Deposit
Date for the Distribution Date in the month following the month during which the
Responsible Party became obligated to repurchase or replace such Mortgage Loan
and upon such deposit of the Repurchase Price, and receipt of a Request for
Release in the form of Exhibit J hereto, the Custodian shall release the related
Custodial File held for the benefit of the Certificateholders to such Person as
directed by the Servicer, and the Trustee shall execute and deliver at such
Person's direction such instruments of transfer or assignment prepared by such
Person, in each case without recourse, as shall be necessary to transfer title
from the Trustee. In accordance with Section 10.05(b), the Securities
Administrator shall promptly notify each Rating Agency of a purchase of a
Mortgage Loan pursuant to this Section 2.03.
It is understood and agreed that the obligation of the Responsible
Party under this Agreement to cure, repurchase or substitute any Mortgage Loan
as to which a breach of a representation and warranty has occurred and is
continuing, together with any related indemnification obligations of the
Responsible Party set forth in Section 2.03(h), shall constitute the sole
remedies against such Person respecting such breach available to
Certificateholders, the Depositor and any of its Affiliates, or the Trustee on
their behalf.
The provisions of this Section 2.03 shall survive delivery of the
respective Custodial Files to the Custodian for the benefit of the
Certificateholders.
Section 2.04 [Reserved].
Section 2.05 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized Denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. 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.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" of each Trust REMIC for purposes of the REMIC Provisions shall
be the Closing Date. The "latest possible maturity date" of the regular
interests in each Trust REMIC is the Distribution Date occurring in _________
20__, which is the Distribution Date in the month following the month in which
the latest Mortgage Loan maturity date occurs.
Amounts distributable to the Class X Certificates (prior to
any reduction for any Basis Risk Payment, Net Swap Payment or Swap Termination
Payment), exclusive of any amounts received from the Swap Provider, shall be
deemed paid from the Upper-Tier REMIC in respect of the Class X Interest and the
Class IO Interest to the Holders of the Class X Certificates prior to
distribution of any Basis Risk Payments to the LIBOR Certificates or Swap
Termination Payment to the Swap Provider.
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For federal income tax purposes, any amount distributed on the LIBOR
Certificates on any Distribution Date in excess of the amount distributable on
their Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date shall be treated as having been paid from the Excess Reserve Fund Account
or the Swap Account, as applicable, and any amount distributable on such
Corresponding Class of Upper-Tier Regular Interest on such Distribution Date in
excess of the amount distributable on the Corresponding Class of LIBOR
Certificates on such Distribution Date shall be treated as having been paid to
the Swap Account, all pursuant to and as further provided in Section 8.13.
Section 2.07 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee and the
Servicer that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The Depositor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the power and authority to convey the Mortgage
Loans and to execute, deliver and perform, and to enter into and consummate
transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite company action having been taken,
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been received or obtained on or
prior to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the certificate of formation or limited liability company
agreement of the Depositor, or (B) of any term, condition or provision of any
material indenture, deed of trust, contract or other agreement or instrument to
which the Depositor or any of its subsidiaries is a party or by which it or any
of its subsidiaries is bound; (ii) results or will result in a violation of any
law, rule, regulation, order, judgment or decree applicable to the Depositor of
any court or governmental authority having jurisdiction over the Depositor or
its subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect
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upon the Mortgage Loans or any documents or instruments evidencing or securing
the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that would materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 10.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.07 shall survive delivery of the
respective Custodial Files to the Custodian, and shall inure to the benefit of
the Trustee.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans in accordance with the terms of this Agreement and the respective
Mortgage Loans and, to the extent consistent with such terms, in the same manner
in which it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of practice
of mortgage lenders and loan servicers administering similar mortgage loans but
without regard to:
(i) any relationship that the Servicer, any Subservicer or any
Affiliate of the Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or Servicing
Advances; or
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(iv) the Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, if the Servicer shall
seek to maximize the timely and complete recovery of principal and interest on
the Mortgage Notes. Subject only to the above-described servicing standards and
the terms of this Agreement and of the respective Mortgage Loans, the Servicer
shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, the Servicer in its
own name or in the name of a Subservicer is hereby authorized and empowered by
the Trustee when the Servicer believes it appropriate in its best judgment in
accordance with Accepted Servicing Practices, to execute and deliver any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee. The Servicer shall at its own expense be responsible for
preparing and recording all lien releases and mortgage satisfactions in
accordance with state and local regulations. The Servicer shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided to
them thereby. The Servicer shall also comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
standard hazard insurance policy. Subject to Section 3.16, the Trustee shall
execute, at the written request of the Servicer, and furnish to the Servicer and
any Subservicer such documents provided to the Trustee as are necessary or
appropriate to enable the Servicer or any Subservicer to carry out their
servicing and administrative duties hereunder, and the Trustee hereby grants to
the Servicer, and this Agreement shall constitute, a power of attorney to carry
out such duties including a power of attorney to take title to Mortgaged
Properties after foreclosure on behalf of the Trustee. The Trustee shall execute
a separate power of attorney, furnished to it by the Servicer, in favor of the
Servicer for the purposes described herein to the extent necessary or desirable
to enable the Servicer to perform its duties hereunder. The Trustee shall not be
liable for the actions of the Servicer or any Subservicers under such powers of
attorney and shall be indemnified by Servicer for any costs, liabilities or
expenses incurred by the Trustee in connection with the Servicer's misuse of
such power of attorney.
(b) Subject to Section 3.09(b), in accordance with the standards of
the preceding paragraph, the Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by the Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary, the
Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in
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Section 4.01) and the Servicer shall not (i) (unless the Mortgagor is in default
with respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) permit any modification with respect to any
Mortgage Loan that would change the Mortgage Rate, reduce or increase the
principal balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (except for a
reduction of interest payments resulting from the application of the
Servicemembers Civil Relief Act or any similar state statutes) or (ii) permit
any modification, waiver or amendment of any term of any Mortgage Loan that
would both (A) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or final, temporary or proposed Treasury regulations
promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a
REMIC under the Code or the imposition of any tax on "prohibited transactions"
or "contributions after the startup day" under the REMIC Provisions, or (iii)
except as provided in Section 3.07(a), waive any Prepayment Charges.
(d) The Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release the Servicer
from the responsibilities or liabilities arising under this Agreement.
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers. (a) The Servicer may enter into subservicing agreements with
Subservicers for the servicing and administration of the Mortgage Loans
("Subservicing Agreements"). The Servicer represents and warrants to the other
parties hereto that no Subservicing Agreement is in effect as of the Closing
Date with respect to any Mortgage Loans required to be serviced by it hereunder.
The Servicer shall give notice to the Depositor, the Securities Administrator
and the Trustee of any such Subservicer and Subservicing Agreement, which notice
shall contain all information (including without limitation a copy of the
Subservicing Agreement and any amendments or modifications thereof) reasonably
necessary to enable the Securities Administrator, pursuant to Section 8.12(g),
to accurately and timely report the event under Item 6.02 of Form 8-K pursuant
to the Exchange Act (if such reports under the Exchange Act are required to be
filed under the Exchange Act). No Subservicing Agreement shall be effective
until 30 days after such written notice is received by the Depositor, the
Securities Administrator and the Trustee. The Trustee shall not be required to
review or consent to such Subservicing Agreements and shall have no liability in
connection therewith.
(b) The Servicer shall cause any Subservicer engaged by the Servicer
(or by any Subservicer) for the benefit of the Depositor, the Securities
Administrator and the Trustee to comply with the provisions of this Section 3.02
and with Sections 3.22, 3.23, 6.02 and 6.05 of this Agreement to the same extent
as if such Subservicer were the Servicer, and to provide the information
required with respect to such Subservicer under Section 8.12 of this Agreement.
The Servicer shall be responsible for obtaining from each such Subservicer and
delivering to applicable Persons any servicer compliance statement required to
be delivered by such Subservicer under Section 3.22 and any assessment of
compliance report and related accountant's attestation required to be delivered
by such Subservicer under Section 3.23, in each case as and when required to be
delivered.
(c) Subject to the conditions set forth in this Section 3.02(c), the
Servicer and any Subservicer engaged by the Servicer is permitted to utilize one
or more Subcontractors to
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perform certain of its obligations hereunder. The Servicer shall promptly upon
request provide to the Depositor a written description (in form and substance
satisfactory to the Depositor) of the role and function of each Subcontractor
utilized by the Servicer or any such Subservicer, specifying, not later than the
date specified for delivery of the annual report on assessment of compliance set
forth in Section 3.23(b) (i) the identity of each such Subcontractor, if any,
that is "participating in the servicing function" within the meaning of Item
1122 of Regulation AB, and (ii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (i) of this paragraph. As a condition to the utilization by
the Servicer or any such Subservicer of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any such Subservicer) for the benefit of the Depositor and the
Securities Administrator to comply with the provisions of Section 3.23 of this
Agreement to the same extent as if such Subcontractor were the Servicer. The
Servicer shall be responsible for obtaining from each such Subcontractor and
delivering to the applicable Persons any assessment of compliance report and
related accountant's attestation required to be delivered by such Subcontractor
under Section 3.23, in each case as and when required to be delivered.
Notwithstanding the foregoing, if the Servicer engages a Subcontractor in
connection with the performance of any of its duties under this Agreement, the
Servicer shall be responsible for determining whether such Subcontractor is a
"servicer" within the meaning of Item 1101 of Regulation AB and whether any such
affiliate or third-party vendor meets the criteria in Item 1108(a)(2)(i) through
(iii) of Regulation AB. If the Servicer determines, pursuant to the preceding
sentence, that such Subcontractor is a "servicer" within the meaning of Item
1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i) through (iii)
of Regulation AB, then such Subcontractor shall be deemed to be a Subservicer
for purposes of this Agreement, the engagement of such Subservicer shall not be
effective unless and until notice is given pursuant to Section 3.02(a).
Section 3.03 Successor Subservicers. The Servicer shall be entitled
to terminate any Subservicing Agreement and the rights and obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance with the terms
and conditions of such Subservicing Agreement; provided, however, that the
termination, resignation or removal of a Subservicer shall be not be effective
until 30 days after written notice is received by both the Depositor and the
Securities Administrator that contains all information reasonably necessary to
enable the Securities Administrator, pursuant to Section 8.12(g), to accurately
and timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act). In the event of termination of any Subservicer, all servicing
obligations of such Subservicer shall be assumed simultaneously by the Servicer
without any act or deed on the part of such Subservicer or the Servicer, and the
Servicer either shall service directly the related Mortgage Loans or shall enter
into a Subservicing Agreement with a successor Subservicer which qualifies under
Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor or the Trustee without
fee, in accordance with the terms of this Agreement, in the event that the
Servicer shall, for any reason, no longer be the Servicer (including termination
due to an Event of Default).
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Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers and
the Trustee. Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and neither the Trustee nor the Securities Administrator (or any
successor Servicer) shall be deemed a party thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer
except as set forth in Section 3.06. The Servicer shall be solely liable for all
fees owed by it to any Subservicer, irrespective of whether the Servicer's
compensation pursuant to this Agreement is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee. In the event the Servicer at any time shall for any reason no longer be
the Servicer (including by reason of the occurrence of an Event of Default), the
Trustee, or its designee or the successor Servicer if the successor is not the
Trustee, shall thereupon assume all of the rights and obligations of the
Servicer under each Subservicing Agreement that the Servicer may have entered
into, with copies thereof provided to the Trustee or the successor Servicer if
the successor is not the Trustee, prior to the Trustee or the successor Servicer
if the successor is not the Trustee, assuming such rights and obligations,
unless the Trustee elects to terminate any Subservicing Agreement in accordance
with its terms as provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the successor
servicer shall be deemed, subject to Section 3.03, to have assumed all of the
Servicer's interest therein and to have replaced the Servicer as a party to each
Subservicing Agreement to the same extent as if each Subservicing Agreement had
been assigned to the assuming party, except that (i) the Servicer shall not
thereby be relieved of any liability or obligations under any Subservicing
Agreement that arose before it ceased to be the Servicer and (ii) none of the
Depositor, the Trustee, their designees or any successor Servicer shall be
deemed to have assumed any liability or obligation of the Servicer that arose
before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of the Trustee, its
designee or the successor Servicer deliver to the assuming party all documents
and records relating to each Subservicing Agreement and the Mortgage Loans then
being serviced and an accounting of amounts collected and held by or on behalf
of it, and otherwise use its best efforts to effect the orderly and efficient
transfer of the Subservicing Agreements to the assuming party.
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Section 3.07 Collection of Certain Mortgage Loan Payments. (a) The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures as it
would follow with respect to mortgage loans comparable to the Mortgage Loans and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if applicable,
any penalty interest, or (ii) extend the Due Dates for the Scheduled Payments
due on a Mortgage Note for a period of not greater than 360 days; provided, that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause (ii)
above, the Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.01 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements, subject to Section 4.01(d) pursuant to which the Servicer shall
not be required to make any such advances that are Nonrecoverable P&I Advances.
Notwithstanding the foregoing, the Servicer may waive, in whole or in part, a
Prepayment Charge only under the following circumstances: (i) such waiver
relates to a default or a reasonably foreseeable default and would, in the
reasonable judgment of the Servicer, maximize recovery of total proceeds taking
into account the value of such Prepayment Charge and the related Mortgage Loan
or (ii) such Prepayment Charge is not permitted to be collected by applicable
law. If a Prepayment Charge is waived other than as permitted by the prior
sentence, then the Servicer is required to pay the amount of such waived
Prepayment Charge, for the benefit of the Holders of the Class P Certificates,
by depositing such amount into the Collection Account from its own funds,
without any right of reimbursement therefor, together with and at the time that
the amount prepaid on the related Mortgage Loan is required to be deposited into
the Collection Account; provided, however, that the Servicer shall not have an
obligation to pay the amount of any uncollected Prepayment Charge if the failure
to collect such amount is the direct result of inaccurate or incomplete
information on the Mortgage Loan Schedule in effect at such time.
(b) (i) The Securities Administrator shall establish and maintain
the Excess Reserve Fund Account, on behalf of the Class X Certificateholders, to
receive any Basis Risk Payment and any Interest Rate Cap Payment and to secure
their limited recourse obligation to pay to the LIBOR Certificateholders Basis
Risk Carry Forward Amounts (prior to using any Net Swap Receipts).
(ii) On each Distribution Date, the Securities Administrator shall
deposit the amount of any Basis Risk Payment and any Interest Rate Cap
Payment for such date into the Excess Reserve Fund Account.
(c) (i) On each Distribution Date on which there exists a Basis Risk
Carry Forward Amount on any Class of Certificates, the Securities Administrator
shall (1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.02(a)(iii)(O), the lesser of (x)
the Class X Distributable Amount (without regard to the reduction in the
definition thereof with respect to the Basis Risk Payment or Defaulted Swap
Termination Payments (to the extent remaining after the distributions specified
in Sections 4.02(a)(iii)(A)-(N)) and (y) the aggregate Basis Risk Carry Forward
Amounts for such
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Distribution Date and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of Certificates the Basis Risk Carry
Forward Amount. Such payments shall be allocated to those Classes and paid in
the priority set forth in Sections 4.02(a)(iii)(P)-(Q).
(ii) The Securities Administrator shall account for the Excess
Reserve Fund Account as an asset of a grantor trust under subpart E, Part
I of subchapter J of the Code and not as an asset of any REMIC created
pursuant to this Agreement. The beneficial owners of the Excess Reserve
Fund Account are the Class X Certificateholders. For all federal tax
purposes, amounts transferred by the Upper Tier REMIC to the Excess
Reserve Fund Account shall be treated as distributions by the Securities
Administrator to the Class X Certificateholders.
(iii) Any Basis Risk Carry Forward Amounts paid by the Securities
Administrator to the LIBOR Certificateholders from the Excess Reserve Fund
Account or the Swap Account shall be accounted for by the Securities
Administrator as amounts paid first to the Holders of the Class X
Certificates (in respect of the Class X Interest or the Class IO Interest,
respectively) and then to the respective Class or Classes of LIBOR
Certificates. In addition, the Securities Administrator shall account for
the LIBOR Certificateholders' rights to receive payments of Basis Risk
Carry Forward Amounts from the Excess Reserve Fund Account (along with
payments of Basis Risk Carry Forward Amounts and, without duplication,
Upper Tier Carry Forward Amounts from the Swap Account) as rights in a
limited recourse interest rate cap contract written by the Class X
Certificateholders in favor of the LIBOR Certificateholders.
(iv) Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any payments from
the Excess Reserve Fund Account except as expressly set forth in this
Section 3.07(c) and Sections 4.02(a)(iii)(P), (Q) and (S).
(d) The Securities Administrator, on behalf of the Trustee shall
establish and maintain the Distribution Account on behalf of the
Certificateholders. The Securities Administrator shall, promptly upon receipt,
deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Securities
Administrator pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted, it may at any time direct the Securities Administrator in
writing to withdraw such amount from the Distribution Account, any provision
herein to the contrary notwithstanding. Such direction may be accomplished by
delivering notice to the Securities Administrator which describes the
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amounts deposited in error in the Distribution Account. All funds deposited in
the Distribution Account shall be held by Securities Administrator on behalf of
the Trustee in trust for the Certificateholders until disbursed in accordance
with this Agreement or withdrawn in accordance with Section 4.02. In no event
shall the Securities Administrator incur liability for withdrawals from the
Distribution Account at the direction of the Servicer.
(e) The Securities Administrator may invest the funds in the
Distribution Account in one or more Permitted Investments in accordance with
Section 3.12. The Securities Administrator may withdraw from the Distribution
Account any income or gain earned from the investment of funds deposited therein
for its own benefit.
(f) The Servicer shall give notice to the Securities Administrator
and the Securities Administrator shall give notice to each Rating Agency and the
Depositor of any proposed change of the location of the Collection Account not
later than 30 days and not more than 45 days prior to any change thereof.
(g) In order to comply with its duties under the USA Patriot Act of
2001, the Securities Administrator shall comply with the ___________ anti-money
laundering compliance program, including, without limitation, any customer
identification procedures.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more
segregated accounts (collectively, the "Subservicing Account"). The Subservicing
Account shall be an Eligible Account and shall otherwise be acceptable to the
Servicer. The Subservicer shall deposit in the clearing account (which account
must be an Eligible Account) in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Subservicer's receipt thereof, all proceeds of Mortgage Loans received by
the Subservicer less its servicing compensation to the extent permitted by the
Subservicing Agreement, and shall thereafter deposit such amounts in the
Subservicing Account, in no event more than two Business Days after the deposit
of such funds into the clearing account. The Subservicer shall thereafter
deposit such proceeds in the Collection Account or remit such proceeds to the
Servicer for deposit in the Collection Account not later than two Business Days
after the deposit of such amounts in the Subservicing Account. For purposes of
this Agreement, the Servicer shall be deemed to have received payments on the
Mortgage Loans when the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) The Servicer shall ensure that each of the Mortgage Loans
shall be covered by a paid-in-full, life-of-the-loan tax service contract with a
provider mutually acceptable to the Depositor and Servicer (each, a "Tax Service
Contract"). Each Tax Service Contract shall be assigned to the Trustee, or its
designee, at the Servicer's expense in the event that the Servicer is terminated
as Servicer of the related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) hereof, the Servicer undertakes to perform such functions. To the
extent the related Mortgage provides for
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Escrow Payments, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more segregated accounts (the "Escrow
Accounts"), which shall be Eligible Accounts. The Servicer shall deposit in the
clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Servicer's receipt thereof, all (i)
collections from the Mortgagors (or related advances from Subservicers) for the
payment of taxes, assessments, hazard insurance premiums and comparable items
for the account of the Mortgagors ("Escrow Payments") collected on account of
the Mortgage Loans and (ii) all Condemnation Proceeds and Insurance Proceeds to
be applied to the restoration of the related Mortgaged Property or released to
the related Mortgagor in accordance with applicable law and Accepted Servicing
Practices, and the Servicer shall thereafter deposit such Escrow Payments in the
Escrow Accounts, in no event more than two Business Days after the deposit of
such funds in the clearing account, for the purpose of effecting the payment of
any such items as required under the terms of this Agreement. Withdrawals of
amounts from an Escrow Account may be made only to (i) effect payment of taxes,
assessments, hazard insurance premiums, and comparable items; (ii) reimburse the
Servicer (or a Subservicer to the extent provided in the related Subservicing
Agreement) out of related collections for any advances made pursuant to Section
3.01 (with respect to taxes and assessments) and Section 3.13 (with respect to
hazard insurance); (iii) refund to Mortgagors any sums as may be determined to
be overages; (iv) pay itself any interest earned on the Escrow Account or, if
required and as described below, to Mortgagors on balances in the Escrow
Account; (v) clear and terminate the Escrow Account at the termination of the
Servicer's obligations and responsibilities in respect of the Mortgage Loans
under this Agreement; (vi) transfer such funds to a replacement Escrow Account
that meets the requirements hereof; (vii) recover amounts deposited in error or
(viii) to release Condemnation Proceeds or Insurance Proceeds to be applied to
the restoration of the related Mortgaged Property or to the related Mortgagor in
accordance with the applicable law and Accepted Servicing Practices. As part of
its servicing duties, the Servicer or Subservicers shall pay to the Mortgagors
interest on funds in Escrow Accounts, to the extent required by law and, to the
extent that interest earned on funds in the Escrow Accounts is insufficient, to
pay such interest from its or their own funds, without any reimbursement
therefor. To the extent that a Mortgage does not provide for Escrow Payments,
the Servicer shall use its reasonable best efforts to determine whether any such
payments are made by the Mortgagor in a manner and at a time that avoids the
loss of the Mortgaged Property due to a tax sale or the foreclosure of a tax
lien. The Servicer assumes full responsibility for the payment of all such bills
within such time and shall effect payments of all such bills irrespective of the
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments, including any payment required to be made in connection with a
Mortgage Loan that does provide for Escrow Payments and is insufficient to make
such payments; provided, however, that such advances are deemed to be Servicing
Advances.
Section 3.10 Collection Account. (a) On behalf of the Trustee and
the Certificateholders, the Servicer shall establish and maintain, or cause to
be established and maintained, one or more segregated Eligible Accounts (such
account or accounts, the "Collection Account"), held in trust for the benefit of
the Trustee on behalf of the Certificateholders. On behalf of the Trustee, the
Servicer shall deposit or cause to be deposited in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and
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collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Servicer's receipt thereof, and shall thereafter deposit into the Collection
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account, as and when received or as otherwise required
hereunder, the following payments and collections received or made by it
subsequent to the Cut-off Date (other than in respect of principal or interest
on the related Mortgage Loans due on or before the Cut-off Date), or payments
(other than Principal Prepayments) received by it on or prior to the Cut-off
Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds to the extent
such Insurance Proceeds and Condemnation Proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to the
related Mortgagor in accordance with the express requirements of law or in
accordance with Accepted Servicing Practices, Liquidation Proceeds and
Subsequent Recoveries;
(iv) any amounts required to be deposited pursuant to Section 3.12
in connection with any losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer pursuant to
the second paragraph of Section 3.13(a) in respect of any blanket policy
deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement or the Sponsor Representation Letter; and
(vii) all Prepayment Charges collected by the Servicer.
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the Servicer shall deposit in the Collection Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Collection Account, any provision herein to the contrary
notwithstanding. The Servicer shall at its own expense be responsible for
reviewing and reconciling the Collection Account in accordance with industry
standards and shall act promptly to resolve any discrepancies related thereto.
(b) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give notice to the Securities Administrator, and the Securities
Administrator shall give notice to the Trustee and the
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Depositor, of the location of the Collection Account maintained by the Servicer
when established and prior to any change thereof.
Section 3.11 Withdrawals from the Collection Account. (a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to each Remittance Date, to remit to the Securities
Administrator (A) the Securities Administrator Fee with respect to such
Distribution Date and (B) all Available Funds in respect of the related
Distribution Date together with all amounts representing Prepayment
Charges (payable to the Class P Certificateholders) from the Mortgage
Loans received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to the
extent of amounts received which represent Late Collections (net of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan, but only to the extent of any Late Collections or
other amounts as may be collected by the Servicer from a Mortgagor, or
otherwise received with respect to such Mortgage Loan (or the related REO
Property);
(iv) to pay to the Servicer as servicing compensation (in addition
to the Servicing Fee) on each Remittance Date any interest or investment
income earned on funds deposited in the Collection Account;
(v) to pay to the applicable Person, with respect to each Mortgage
Loan that has previously been repurchased or replaced by such Person
pursuant to this Agreement or the Sponsor Representation Letter, all
amounts received thereon subsequent to the date of purchase or
substitution, as the case may be;
(vi) to reimburse the Servicer for any P&I Advance or Servicing
Advance previously made which the Servicer has determined to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01;
(vii) to pay, or to reimburse the Servicer for Servicing Advances in
respect of, expenses incurred in connection with any Mortgage Loan
pursuant to Section 3.15;
(viii) to reimburse the Servicer, the Depositor or the Trustee for
expenses incurred by or reimbursable to the Servicer, the Depositor or the
Trustee, as the case may be, pursuant to Section 6.03, Section 7.02 or
Section 8.05;
(ix) to reimburse the Servicer, the Securities Administrator or the
Trustee, as the case may be, for expenses reasonably incurred in respect
of the breach or defect giving rise to the repurchase obligation under
this Agreement or the Sponsor Representation Letter that were included in
the Repurchase Price of the Mortgage Loan,
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including any expenses arising out of the enforcement of the repurchase
obligation, to the extent not otherwise paid pursuant to the terms hereof;
(x) to withdraw any amounts deposited in the Collection Account in
error; and
(xi) to clear and terminate the Collection Account upon termination
of this Agreement.
(b) The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (v), (vi), (vii), (viii) and (ix)
above. The Servicer shall provide written notification (as set forth in
Section 4.01(d)) to the Securities Administrator, on or prior to the next
succeeding Remittance Date, upon making any withdrawals from the Collection
Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account, Escrow
Accounts and the Distribution Account. (a) The Servicer may invest the funds in
the Collection Account and the Escrow Accounts (to the extent permitted by law
and the related Mortgage Loan documents) and the Securities Administrator may
invest funds in the Distribution Account (for purposes of this Section 3.12,
each such Account is referred to as an "Investment Account"), in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement; provided, however, that any such Permitted
Investment managed by or advised by the Securities Administrator or any of its
Affiliates may mature, unless payable on demand, no later than the date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Servicer or the Securities Administrator, as applicable.
The Servicer or the Securities Administrator, as applicable, shall be entitled
to sole possession over each such investment, and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Servicer or the Securities Administrator or its agent, as applicable, together
with any document of transfer necessary to transfer title to such investment to
the Servicer or the Securities Administrator or its agent, as applicable. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Servicer or the Securities
Administrator, as applicable, may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in an
Investment Account.
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(b) All income and gain realized from the investment of funds
deposited in the Collection Account or Escrow Account, as applicable, held by or
on behalf of the Servicer, shall be for the benefit of the Servicer and shall be
subject to its withdrawal in the manner set forth in Section 3.11. The Servicer
shall deposit in the Collection Account or Escrow Account, as applicable, the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of such
loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator,
shall be for the benefit of the Securities Administrator, and shall be subject
to the Securities Administrator's withdrawal in the manner set forth in Section
3.07(e). The Securities Administrator shall deposit in the Distribution Account
the amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such account immediately upon realization of such
loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment of
funds held in the Escrow Account or the Collection Account, or if a default
occurs in any other performance required under any Permitted Investment of funds
held in the Escrow Account or the Collection Account, the Servicer shall take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
Section 3.13 Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage. (a) The Servicer shall cause to be maintained
for each Mortgage Loan fire insurance with extended coverage on the related
Mortgaged Property in an amount which is at least equal to the least of (i) the
outstanding principal balance of such Mortgage Loan, (ii) the amount necessary
to fully compensate for any damage or loss to the improvements that are a part
of such property on a replacement cost basis and (iii) the maximum insurable
value of the improvements which are a part of such Mortgaged Property, in each
case in an amount not less than such amount as is necessary to avoid the
application of any coinsurance clause contained in the related hazard insurance
policy. The Servicer shall also cause to be maintained fire insurance with
extended coverage on each REO Property in an amount which is at least equal to
the lesser of (i) the maximum insurable value of the improvements which are a
part of such property and (ii) the outstanding principal balance of the related
Mortgage Loan at the time it became an REO Property, plus accrued interest at
the Mortgage Rate and related Servicing Advances. The Servicer will comply in
the performance of this Agreement with all reasonable rules and requirements of
each insurer under any such hazard policies. Any amounts to be collected by the
Servicer under any such policies (other than amounts required to be deposited in
the Escrow Account and applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor in
accordance with the procedures that the Servicer would follow in servicing loans
held for its own account, subject to the terms and conditions of the related
Mortgage and Mortgage Note) shall be deposited in the Collection Account,
subject to withdrawal pursuant to Section 3.11. Any cost incurred by the
Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Securities Administrator, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than
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pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
or REO Property is at any time in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards and
flood insurance has been made available, the Servicer will cause to be
maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the unpaid principal balance of
the related Mortgage Loan and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer having a general policy rating of A:X or better in Best's
(or such other rating that is comparable to such rating) insuring against hazard
losses on all of the Mortgage Loans, it shall conclusively be deemed to have
satisfied its obligations as set forth in the first two sentences of this
Section 3.13, it being understood and agreed that such policy may contain a
deductible clause, in which case the Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO Property
a policy complying with the first two sentences of this Section 3.13, and there
shall have been one or more losses which would have been covered by such policy,
deposit to the Collection Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself and the
Trustee, claims under any such blanket policy in a timely fashion in accordance
with the terms of such policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall also maintain a fidelity bond
in the form and amount that would meet the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, unless the Servicer has obtained a waiver of such requirements from ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall provide the Trustee and the Securities
Administrator with copies of any such insurance policies and fidelity bond. The
Servicer shall be deemed to have complied with this provision if an Affiliate of
the Servicer has such errors and omissions and fidelity bond coverage and, by
the terms of such insurance policy or fidelity bond, the coverage afforded
thereunder extends to the Servicer. Any such errors and omissions policy and
fidelity bond shall by its terms not be cancelable without thirty days' prior
written notice to the Trustee and the Securities Administrator. The Servicer
shall also cause each Subservicer to maintain a policy of insurance covering
errors and omissions and a fidelity bond which would meet such requirements.
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; provided, however, that the
Servicer shall not
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be required to take such action if, in its sole business judgment, the Servicer
believes it is not in the best interests of the Trust Fund and shall not
exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into either (i) an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon or (ii) a
substitution agreement as provided in the succeeding sentence. The Servicer is
also authorized to enter into a substitution of liability agreement with such
person, pursuant to which the original Mortgagor is released from liability and
such person is substituted as the Mortgagor and becomes liable under the
Mortgage Note, provided, that no such substitution shall be effective unless
such person satisfies the underwriting criteria of the Servicer and has a credit
risk rating at least equal to that of the original Mortgagor. In connection with
any assumption, modification or substitution, the Servicer shall apply such
underwriting standards and follow such practices and procedures as shall be
normal and usual in its general mortgage servicing activities and as it applies
to other mortgage loans owned solely by it. The Servicer shall not take or enter
into any assumption and modification agreement, however, unless (to the extent
practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Rate and the
amount of the Scheduled Payment) may be amended or modified, except as otherwise
required pursuant to the terms thereof. The Servicer shall notify the Securities
Administrator that any such substitution, modification or assumption agreement
has been completed and shall forward to the Custodian the executed original of
such substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. The Servicer
shall use its best efforts, consistent with Accepted Servicing Practices, to
foreclose upon or otherwise comparably convert (which may include an acquisition
of REO Property) the ownership of properties securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07, and which are not released from this Agreement pursuant to any
other provision hereof. The Servicer shall use reasonable efforts to realize
upon such defaulted Mortgage Loans in such manner as will maximize the receipt
of principal and interest by the Trustee, taking into
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account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage from an uninsured cause, the Servicer shall
not be required to expend its own funds toward the restoration of such property
unless it shall determine in its sole discretion (i) that such restoration will
increase the net Liquidation Proceeds of the related Mortgage Loan to the
Trustee, after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by the Servicer through Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or Subsequent Recoveries from the
related Mortgaged Property, as contemplated in Section 3.11. The Servicer shall
be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof as contemplated in Section 3.11.
The proceeds of any liquidation or REO Disposition, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or Subsequent Recoveries or any income from an
REO Property, will be applied in the following order of priority: first, to
reimburse the Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to accrued and unpaid
interest on the Mortgage Loan or REO Imputed Interest, at the Mortgage Rate, to
the date of the liquidation or REO Disposition, or to the Due Date prior to the
Remittance Date on which such amounts are to be distributed if not in connection
with a liquidation or REO Disposition; third, to reimburse the Servicer for any
related ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, pursuant to Section 3.11; and fourth, as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than a full recovery thereof, that amount will be
allocated as follows: first, to unpaid Servicing Fees; and second, as interest
at the Mortgage Rate (net of the Servicing Fee Rate). The portion of the
recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
Servicer or any Subservicer pursuant to Section 3.11 or 3.17. The portions of
the recovery so allocated to interest at the Mortgage Rate (net of the Servicing
Fee Rate) and to principal of the Mortgage Loan shall be applied as follows:
first, to reimburse the Servicer or any Subservicer for any related unreimbursed
Servicing Advances in accordance with Section 3.11 or 3.17, and second, to the
Securities Administrator in accordance with the provisions of Section 4.02,
subject to paragraph (g) of Section 3.17 with respect to certain excess
recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee otherwise requests, the Servicer shall
cause an environmental inspection or review of such Mortgaged Property to be
conducted by a qualified inspector. Upon completion of the inspection, the
Servicer shall promptly provide the Trustee and the Depositor with a written
report of the environmental inspection.
In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the Servicer proceeds with foreclosure or acceptance of a deed in
lieu of foreclosure, the Servicer shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of foreclosure
and any related environmental clean-up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to fully
reimburse the
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Servicer, the Servicer shall be entitled to be reimbursed from amounts in the
Collection Account pursuant to Section 3.11. In the event the Servicer does not
proceed with foreclosure or acceptance of a deed in lieu of foreclosure, the
Servicer shall be reimbursed from general collections for all Servicing Advances
made with respect to the related Mortgaged Property from the Collection Account
pursuant to Section 3.11.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full
of any Mortgage Loan, or the receipt by the Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer will, within five (5) Business Days of the payment in full, notify the
Custodian by a certification (which certification shall include a statement to
the effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Custodial File by submitting a Request for
Release, which Request for Release may be in an electronic format in a form
acceptable to the Custodian, to the Custodian. Upon receipt of such
certification and Request for Release, the Custodian shall promptly release the
related Custodial File to the Servicer within two (2) Business Days. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Insurance Policy relating to the Mortgage Loans, the Custodian shall, upon
request of the Servicer and delivery to the Custodian of a Request for Release,
which Request for Release may be in an electronic format in a form acceptable to
the Custodian, release the related Custodial File to the Servicer, and the
Trustee shall, at the direction of the Servicer, execute such documents as shall
be necessary to the prosecution of any such proceedings and the Servicer shall
retain the Mortgage File in trust for the benefit of the Trustee. Such Request
for Release shall obligate the Servicer to return each and every document
previously requested from the Custodial File to the Custodian when the need
therefor by the Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Collection Account or the Mortgage File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered to the Custodian a certificate of
a Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. Upon receipt of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Custodian to the Servicer or its designee.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Servicer copies of any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the
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Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce any
other remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity, or shall exercise and deliver to the Servicer a
power of attorney sufficient to authorize the Servicer to execute such documents
on its behalf. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) In the event that title to a Mortgaged Property is acquired in foreclosure
or by deed in lieu of foreclosure, the deed or certificate of sale shall be
taken (pursuant to a limited power of attorney to be provided by the Trustee to
the Servicer) in the name of the Trustee or a nominee thereof, on behalf of the
Certificateholders, or in the event the Trustee or a nominee thereof is not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the "doing
business" or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Servicer from an attorney
duly licensed to practice law in the state where the REO Property is located.
Any Person or Persons holding such title other than the Trustee shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Trustee. The Trustee's name shall be placed on the title to such REO
Property solely as the Trustee hereunder and not in its individual capacity. The
Servicer shall ensure that the title to such REO Property references this
Agreement and the Trustee's capacity hereunder.
(b) The Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee solely for the purpose of its prompt disposition
and sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt to
sell the same (and may temporarily rent the same for a period not greater than
one year, except as otherwise provided below) on such terms and conditions as
the Servicer deems to be in the best interest of the Trustee on behalf of the
Certificateholders. The Servicer shall notify the Trustee and Securities
Administrator from time to time as to the status of each REO Property.
(c) The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within one year after title has been taken to such REO Property, unless the
Servicer determines, and gives an appropriate notice to the Trustee to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. If a period longer than one year is permitted under the foregoing
sentence and is necessary to sell any REO Property, the Servicer shall report
monthly to the Trustee and Securities Administrator as to the progress being
made in selling such REO Property.
(d) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
Collection Account.
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(e) The Servicer shall deposit net of reimbursement to the Servicer
for any related outstanding Servicing Advances and unpaid Servicing Fees
provided in Section 3.11, or cause to be deposited, in no event more than one
(1) Business Day after the Servicer's receipt thereof, in the Collection Account
all revenues received with respect to the related REO Property and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess of
the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the Servicer as additional servicing compensation.
(h) The Servicer shall use its reasonable best efforts to sell, or
cause the Subservicer to sell, in accordance with Accepted Servicing Practices,
any REO Property as soon as possible, but in no event later than the conclusion
of the third calendar year beginning after the year of its acquisition by
Pooling Tier REMIC-1 unless (i) the Servicer applies for an extension of such
period from the Internal Revenue Service pursuant to the REMIC Provisions and
Code Section 856(e)(3), in which event such REO Property shall be sold within
the applicable extension period, or (ii) the Servicer obtains for the Trustee
and Securities Administrator an Opinion of Counsel, addressed to the Depositor,
the Trustee, the Servicer and the Securities Administrator to the effect that
the holding by Pooling Tier REMIC-1 of such REO Property subsequent to such
period will not result in the imposition of taxes on "prohibited transactions"
as defined in Section 860F of the Code or cause any Trust REMIC to fail to
qualify as a REMIC under the REMIC Provisions or comparable provisions of
relevant state laws at any time. The Servicer shall manage, conserve, protect
and operate each REO Property for the Trustee, the Certificateholders and the
Trust Fund solely for the purpose of its prompt disposition and sale in a manner
which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) or result in the receipt by
the Pooling Tier REMIC-1 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 Section 860G(a)(1) of the Code.
Pursuant to its efforts to sell such REO Property, the Servicer shall either
itself or through an agent selected by the Servicer protect and conserve such
REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Trustee on behalf of the
Certificateholders, rent the same, or any part thereof, as the Servicer deems to
be in the best interest of the Trustee on behalf of the Certificateholders for
the period prior to the sale of such REO Property; provided, however, that any
rent received or accrued with respect to such REO Property qualifies as "rents
from real property" as defined in Section 856(d) of the Code.
Section 3.18 Notification of Adjustments. With respect to each
Adjustable Rate Mortgage Loan, the Servicer shall adjust the Mortgage Rate on
the related Adjustment Date and
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shall adjust the Scheduled Payment on the related mortgage payment adjustment
date, if applicable, in compliance with the requirements of applicable law and
the related Mortgage and Mortgage Note. In the event that an Index becomes
unavailable or otherwise unpublished, the Servicer shall select a comparable
alternative index over which it has no direct control and which is readily
verifiable. The Servicer shall execute and deliver any and all necessary notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Rate and Scheduled Payment adjustments. The
Servicer shall promptly, upon written request therefor, deliver to the
Securities Administrator such notifications and any additional applicable data
regarding such adjustments and the methods used to calculate and implement such
adjustments. Upon the discovery by the Servicer that the Servicer has failed to
adjust a Mortgage Rate or Scheduled Payment in accordance with the terms of the
related Mortgage Note, the Servicer shall deposit in the Collection Account from
its own funds the amount of any interest loss caused as such interest loss
occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. In the event the Servicer reasonably believes that
compliance with this Section will make the Mortgage Loans legal for investment
by federally insured savings and loan associations, the Servicer shall provide,
or cause the Subservicer to provide, to the Depositor, the Securities
Administrator, the Trustee, the OTS or the FDIC and the examiners and
supervisory agents thereof, access to the documentation regarding the Mortgage
Loans in its possession required by applicable regulations of the OTS. Such
access shall be afforded without charge, but only upon reasonable and prior
written request and during normal business hours at the offices of the Servicer
or, if applicable, any Subservicer. Nothing in this Section shall derogate from
the obligation of any such party to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of any such
party to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section.
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Securities Administrator. Not later than thirty days
after each Distribution Date, the Servicer shall forward to the Securities
Administrator a statement prepared by the Servicer setting forth the status of
the Collection Account as of the close of business on the last day of the
calendar month relating to such Distribution Date and showing, for the period
covered by such statement, the aggregate amount of deposits into and withdrawals
from the Collection Account of each category of deposit specified in Section
3.10(a) and each category of withdrawal specified in Section 3.11. Such
statement may be in the form of the then current ▇▇▇▇▇▇ ▇▇▇ Monthly Accounting
Report for its Guaranteed Mortgage Pass-Through Program with appropriate
additions and changes. Copies of such statement shall be provided by the
Securities Administrator to any Certificateholder and to any Person identified
to the Securities Administrator as a prospective transferee of a Certificate,
upon the request and at the expense of the requesting party, provided such
statement is delivered by the Servicer to the Securities Administrator.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, the Servicer shall, with respect to each Mortgage Loan, be
entitled to retain from deposits to the Collection Account and from Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, Subsequent Recoveries and
REO Proceeds related to such Mortgage Loan, the Servicing Fee with respect to
each Mortgage Loan (less any portion of such amounts retained
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by any Subservicer). In addition, the Servicer shall be entitled to recover
unpaid Servicing Fees out of related Late Collections and as otherwise permitted
under Section 3.11. The right to receive the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Servicer's responsibilities and obligations under this Agreement; provided,
however, that the Servicer may pay from the Servicing Fee any amounts due to a
Subservicer pursuant to a Subservicing Agreement entered into under Section
3.02.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, net Prepayment Interest Excesses (to
the extent not required to offset Prepayment Interest Shortfalls), NSF fees,
reconveyance fees and other similar fees and charges (other than Prepayment
Charges) shall be retained by the Servicer only to the extent such fees or
charges are received by the Servicer. The Servicer shall also be entitled
pursuant to Section 3.11(a)(iv) to withdraw from the Collection Account, as
additional servicing compensation, interest or other income earned on deposits
therein. The Servicer shall also be entitled as additional servicing
compensation, to interest or other income earned on deposits in the Escrow
Account (to the extent permitted by law and the related Mortgage Loan documents)
in accordance with Section 3.12.
(c) The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by the Servicer), and shall not be entitled to reimbursement
therefor from the Trust Fund except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. The Servicer shall
deliver, and shall cause each Subservicer engaged by the Servicer to deliver or
cause to be delivered, an Officer's Certificate (as described below) to the
Securities Administrator on or before March 1st of each calendar year,
commencing in 2007 (the Securities Administrator shall deliver such Officer's
Certificate to the Depositor within one Business Day of receipt), and the
Securities Administrator shall deliver, to the Depositor on or before March 1st
of each calendar year, commencing in 2007, an Officer's Certificate stating, as
to each signatory thereof, that (i) a review of the activities of the Securities
Administrator, Servicer or Subservicer, as applicable, during the preceding
calendar year and of its performance under this Agreement or the applicable
Subservicing Agreement, as the case may be, has been made under such officers'
supervision, and (ii) to the best of such officers' knowledge, based on such
review, the Securities Administrator, Servicer or Subservicer, as applicable,
has fulfilled all of its obligations under this Agreement or the applicable
Subservicing Agreement, as the case may be, in all material respects, throughout
such year, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officers and the
nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review such Officer's Certificate and, if
applicable, consult with the Securities Administrator, Servicer or Subservicer
as to the nature of any failure by the Securities Administrator, Servicer or
Subservicer to fulfill any of the Securities Administrator's, Servicer's or
Subservicer's obligations. The obligations of the Securities Administrator,
Servicer and Subservicer under this Section apply to each Securities
Administrator, Servicer and Subservicer that acted as Securities Administrator
or serviced a Mortgage Loan, as applicable, during the applicable period,
whether
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or not the Securities Administrator, the Servicer or such Subservicer is acting
as the Securities Administrator, Servicer or Subservicer, as applicable, at the
time such Officer's Certificate is required to be delivered. None of the
Securities Administrator, Servicer or Subservicer shall be required to cause the
delivery of any Officer's Certificate required by this Section until March 15th
in any given year so long as it has received written confirmation from the
Depositor that a Form 10-K is not required to be filed in respect of the Trust
for the preceding calendar year.
Section 3.23 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report.
(a) Not later than March 1st of each calendar year commencing in
2007, the Servicer and the Securities Administrator shall deliver, and the
Servicer shall cause each Subservicer engaged by the Servicer and the Servicer
and the Securities Administrator shall cause each Subcontractor utilized by the
Servicer (or by any such Subservicer) or the Securities Administrator, as
applicable, and determined by the Servicer or the Securities Administrator, as
applicable, pursuant to Section 3.02(e) to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB (in each case, a
"Servicing Function Participant"), to deliver, each at its own expense, to the
Depositor and the Securities Administrator, a report on an assessment of
compliance with the Servicing Criteria applicable to it during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Each such assessment of compliance
report shall be addressed to the Depositor and signed by an authorized officer
of the applicable company, and shall address each of the applicable Servicing
Criteria set forth on Exhibit O hereto, or as set forth in the notification
furnished to the Depositor and the Securities Administrator pursuant to Section
3.23(c). The Servicer and the Securities Administrator hereby acknowledge and
agree that their respective assessments of compliance will cover the items
identified on Exhibit O hereto as being covered by such party. The parties to
this Agreement acknowledge that where a particular Servicing Criterion has
multiple components, each party's assessment of compliance and related
attestation of compliance) will relate only to those components that are
applicable to such party. Promptly after receipt of each such report on
assessment of compliance, the Depositor shall review each such report and, if
applicable, consult with the Servicer or the Securities Administrator as to the
nature of any material instance of noncompliance with the Servicing Criteria
applicable to it (and each Subservicer or Servicing Function Participant engaged
or utilized by the Servicer, such Subservicer or the Securities Administrator,
as applicable), as the case may be. None of the Servicer or the Securities
Administrator or any Subservicer or Servicing Function Participant shall be
required to cause the delivery of any such assessments until March 15th in any
given year so long as it has received written confirmation from the Depositor
that a Form 10-K is not required to be filed in respect of the Trust for the
preceding calendar year.
(b) Not later than March 1st of each calendar year commencing in
2007, the Servicer and the Securities Administrator shall cause, and the
Servicer shall cause each Subservicer engaged by the Servicer and the Servicer
and the Securities Administrator shall cause each Servicing Function Participant
utilized by the Securities Administrator or the Servicer, as applicable (or by
any Subservicer engaged by the Servicer), to cause, each at its own expense, a
registered public accounting firm (which may also render other services to such
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party) that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Securities Administrator and the
Depositor that attests to and reports on such Person's assessment of compliance
with the Servicing Criteria applicable to it made pursuant to Section 3.23(a).
Each such related accountant's attestation report shall be made in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and
the Exchange Act. Promptly after receipt of each such accountants' attestation
report, the Depositor shall review the report and, if applicable, consult with
the Servicer or the Securities Administrator as to the nature of any defaults by
the Servicer or the Securities Administrator (and each Subservicer or Servicing
Function Participant engaged or utilized by the Servicer or the Securities
Administrator, as applicable, or by any Subservicer engaged by the Servicer), as
the case may be, in the fulfillment of any of the Servicer's, the Securities
Administrator's or the applicable Subservicer's or Servicing Function
Participant's obligations hereunder or under any applicable sub-servicing
agreement. None of the Servicer, the Securities Administrator or any Servicer or
Servicing Function Participant shall be required to cause the delivery of any
such attestation required by this paragraph until March 15th in any given year
so long as it has received written confirmation from the Depositor that a Form
10-K is not required to be filed in respect of the Trust for the preceding
calendar year.
(c) Promptly upon written request of the Depositor or Securities
Administrator, the Servicer shall notify the Securities Administrator and the
Depositor as to the name of each Subservicer engaged by it for the prior fiscal
year and each Servicing Function Participant utilized by it and by each
Subservicer engaged by it, and the Securities Administrator shall notify the
Depositor as to the name of each Servicing Function Participant utilized by it,
and each such notice will specify what specific Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Servicing
Function Participant in each case, to the extent of any change from the prior
year's notice, if any. When the Servicer or the Securities Administrator submits
its assessment pursuant to Section 3.23(a), the Servicer and the Securities
Administrator, as applicable, will also at such time include the assessment (and
related attestation pursuant to Section 3.23(b)) of each Servicing Function
Participant utilized by it and by each Subservicer engaged by it.
Section 3.24 Trustee to Act as Servicer. (a) In the event that the
Servicer shall for any reason no longer be the Servicer hereunder (including by
reason of an Event of Default), the Trustee or its successor shall thereupon
assume all of the rights and obligations of the Servicer hereunder arising
thereafter, except that the Trustee shall not be (i) liable for losses of the
predecessor Servicer pursuant to Section 3.10 or any acts or omissions of the
predecessor Servicer hereunder, (ii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder, (iii) responsible for expenses of the
predecessor Servicer pursuant to Section 2.03, (iv) obligated to make Advances
if it is prohibited from doing so by applicable law, (v) deemed to have made any
representations and warranties of the Servicer hereunder, or (vi) obligated to
perform an obligation of the Servicer under Sections 3.22 or 3.23 with respect
to any period of time during which the Trustee was not the Servicer. Any such
assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer shall
contain a provision giving the successor Servicer the option to terminate such
agreement in the event a successor Servicer is appointed.
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(c) If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Trustee (or any other
successor Servicer) may, at its option, succeed to any rights and obligations of
the Servicer under any Subservicing Agreement in accordance with the terms
thereof; provided, that the Trustee (or any other successor Servicer) shall not
incur any liability or have any obligations in its capacity as successor
Servicer under a Subservicing Agreement arising prior to the date of such
succession unless it expressly elects to succeed to the rights and obligations
of the Servicer thereunder; and the Servicer shall not thereby be relieved of
any liability or obligations under the Subservicing Agreement arising prior to
the date of such succession.
(d) The Servicer shall, upon request of the Trustee, but at the
expense of the Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement (if any) and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held by it,
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Subservicing Agreement to the assuming party.
Section 3.25 Compensating Interest. The Servicer shall remit to the
Securities Administrator on each Remittance Date an amount from its own funds
equal to the Compensating Interest payable by the Servicer for the related
Distribution Date.
Section 3.26 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. (a) With
respect to each Mortgage Loan, the Servicer agrees to fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
primary borrower of such Mortgage Loan to Equifax, Experian and TransUnion
Credit Information Company (three of the credit repositories) on a monthly
basis.
(b) The Servicer shall comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act of 1999 and all applicable regulations promulgated thereunder, relating to
the Mortgage Loans and the related borrowers and shall provide all required
notices thereunder.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be made by
the Servicer for any Remittance Date shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each interest
portion thereof net of the related Servicing Fee), due during the Due Period
immediately preceding such Remittance Date in respect of the Mortgage Loans,
which Scheduled Payments were not received as of the close of business on the
related Determination Date, plus (ii) with respect to each REO Property, which
REO Property was acquired during or prior to the related Prepayment Period and
as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the
Scheduled Payments (with each interest portion thereof net of the related
Servicing Fee) that would have been due on the related Due Date in respect of
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the related Mortgage Loans, over the net income from such REO Property
transferred to the Collection Account for distribution on such Remittance Date.
(b) On each Remittance Date, the Servicer shall remit in immediately
available funds to the Securities Administrator an amount equal to the aggregate
amount of P&I Advances, if any, to be made in respect of the Mortgage Loans and
REO Properties for the related Remittance Date either (i) from its own funds or
(ii) from the Collection Account, to the extent of funds held therein for future
distribution (in which case, it will cause to be made an appropriate entry in
the records of Collection Account that Amounts Held for Future Distribution have
been, as permitted by this Section 4.01, used by the Servicer in discharge of
any such P&I Advance) or (iii) in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made by the Servicer with
respect to the Mortgage Loans and REO Properties. Any Amounts Held for Future
Distribution and so used shall be appropriately reflected in the Servicer's
records and replaced by the Servicer by deposit in the Collection Account on or
before any future Remittance Date to the extent required.
(c) The obligation of the Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
(d) below, and, with respect to any Mortgage Loan or REO Property, shall
continue until a Final Recovery Determination in connection therewith or the
removal thereof from coverage under this Agreement, except as otherwise provided
in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I Advance
or Servicing Advance shall be required to be made hereunder by the Servicer if
such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by the Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Securities Administrator
and the Trustee.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds, Condemnation Proceeds and
Subsequent Recoveries) with respect to the related Mortgage Loan.
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Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator will make disbursements and transfers from
amounts then on deposit in the Distribution Account in the following order of
priority and to the extent of Available Funds remaining and, on such
Distribution Date, shall make distributions on the Certificates in accordance
with such allocation:
(i) to the holders of each Class of LIBOR Certificates and to the
Swap Account in the following order of priority:
(A) to the Swap Account, the sum of (x) all Net Swap Payments
and (y) any Swap Termination Payment owed to the Swap Provider other
than a Defaulted Swap Termination Payment;
(B) from the Interest Remittance Amounts for both Loan Groups,
to the Class A-1A, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ and Class A-2C
Certificates, the related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for such Distribution Date, in
each case pursuant to the allocation set forth in clauses (iv) and
(v) of this Section 4.02(a);
(C) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amounts, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(F) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(G) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(H) from any remaining Interest Remittance Amounts, to the
Class B-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(I) from any remaining Interest Remittance Amounts, to the
Class B-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
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(ii) (A) on each Distribution Date (1) before the Stepdown Date or
(2) with respect to which a Trigger Event is in effect, to the holders of
the related Class or Classes of LIBOR Certificates then entitled to
distributions of principal as set forth below, from amounts remaining on
deposit in the Distribution Account after making distributions pursuant to
clause (i) above, an amount equal to the Principal Distribution Amount in
the following order of priority:
(a) to the Class A-1A, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ and
Class A-2C Certificates, allocated as described in Section 4.02(c),
until the respective Class Certificate Balances thereof are reduced
to zero; and
(b) sequentially to the Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 and Class B-3 Certificates, in that order, until the
respective Class Certificate Balances are reduced to zero;
(B) on each Distribution Date (1) on and after the Stepdown
Date and (2) as long as a Trigger Event is not in effect, to the holders
of the related Class or Classes of LIBOR Certificates then entitled to
distribution of principal, from amounts remaining on deposit in the
Distribution Account after making distributions pursuant to clause (i)
above, an amount equal to, in the aggregate, the Principal Distribution
Amount in the following amounts and order of priority:
(a) to the Class A Certificates, the lesser of (x) the
Principal Distribution Amount and (y) the Class A Principal
Distribution Amount, allocated as described in Section 4.02(c),
until the respective Class Certificate Balances thereof are reduced
to zero;
(b) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above and (y) the Class M-1 Principal Distribution Amount, until the
Class Certificate Balance thereof has been reduced to zero;
(c) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above and to the Class M-1 Certificates in clause (ii)(B)(b) above
and (y) the Class M-2 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(d) to the Class M-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class M-1 Certificates in clause (ii)(B)(b) above and
to the Class M-2 Certificates in clause (ii)(B)(c) above and (y) the
Class M-3 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(e) to the Class B-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A
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Certificateholders in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above and to the Class M-3
Certificates in clause (ii)(B)(d) above and (y) the Class B-1
Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(f) to the Class B-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class M-1 Certificates in clause (ii)(B)(b) above, to
the Class M-2 Certificates in clause (ii)(B)(c) above, to the Class
M-3 Certificates in clause (ii)(B)(d) above and to the Class B-1
Certificates in clause (ii)(B)(e) above and (y) the Class B-2
Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(g) to the Class B-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class M-1 Certificates in clause (ii)(B)(b) above, to
the Class M-2 Certificates in clause (ii)(B)(c) above, to the Class
M-3 Certificates in clause (ii)(B)(d) above, to the Class B-1
Certificates in clause (ii)(B)(e) above and to the Class B-2
Certificates in clause (ii)(B)(f) above and (y) the Class B-3
Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(h) to the Class B-4 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class M-1 Certificates in clause (ii)(B)(b) above, to
the Class M-2 Certificates in clause (ii)(B)(c) above, to the Class
M-3 Certificates in clause (ii)(B)(d) above, to the Class B-1
Certificates in clause (ii)(B)(e) above, to the Class B-2
Certificates in clause (ii)(B)(f) above and to the Class B-3
Certificates in clause (ii)(B)(g) above and (y) the Class B-4
Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above, plus as specifically indicated below, from amounts on
deposit in the Excess Reserve Fund Account, shall be distributed in the
following order of priority:
(A) to the Class M-1 Certificates, any Unpaid Interest Amount
for such Class;
(B) to the Class M-1 Certificates, any Unpaid Realized Loss
Amount for such Class;
(C) to the Class M-2 Certificates, any Unpaid Interest Amount
for such Class;
(D) to the Class M-2 Certificates, any Unpaid Realized Loss
Amount for such Class;
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(E) to the Class M-3 Certificates, any Unpaid Interest Amount
for such Class;
(F) to the Class M-3 Certificates, any Unpaid Realized Loss
Amount for such Class;
(G) to the Class B-1 Certificates, any Unpaid Interest Amount
for such Class;
(H) to the Class B-1 Certificates, any Unpaid Realized Loss
Amount for such Class;
(I) to the Class B-2 Certificates, any Unpaid Interest Amount
for such Class;
(J) to the Class B-2 Certificates, any Unpaid Realized Loss
Amount for such Class;
(K) to the Class B-3 Certificates, any Unpaid Interest Amount
for such Class;
(L) to the Class B-3 Certificates, any Unpaid Realized Loss
Amount for such Class;
(M) to the Class B-4 Certificates, any Unpaid Interest Amount
for such Class;
(N) to the Class B-4 Certificates, any Unpaid Realized Loss
Amount for such Class;
(O) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to Net Swap Receipts) for such
Distribution Date;
(P) concurrently, (i) from any Interest Rate Cap Payments with
respect to the Class M Cap Agreement on deposit in the Excess
Reserve Fund Account with respect to such Distribution Date, an
amount equal to any unpaid Basis Risk Carry Forward Amount with
respect to the Class M Certificates for such Distribution Date to
the Class M Certificates, allocated (a) first, among the Class M-1
Certificates, Class M-2 Certificates and Class M-3 Certificates, pro
rata, based upon their respective Class Certificate Balances (only
with respect to those Class M Certificates with an outstanding Basis
Risk Carry Forward Amount) and (b) second, any remaining amounts to
the Class M-1 Certificates, Class M-2 Certificates and Class M-3
Certificates, pro rata, based on any such Basis Risk Carry Forward
Amounts remaining unpaid, to reimburse such Basis Risk Carry Forward
Amounts remaining unpaid, and (ii) from any Interest Rate Cap
Payments with respect to the Class B Cap Agreement on deposit in the
Excess Reserve Fund Account with respect to such Distribution Date,
an amount equal to any unpaid Basis Risk Carry Forward Amount with
respect to the Class B
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Certificates for such Distribution Date to the Class B Certificates,
allocated (a) first, among the Class B-1 Certificates, Class B-2
Certificates, Class B-3 Certificates and Class B-4 Certificates, pro
rata, based upon their respective Class Certificate Balances (only
with respect to those Class B Certificates with an outstanding Basis
Risk Carry Forward Amount) and (b) second, any remaining amounts to
the Class B-1 Certificates, Class B-2 Certificates, Class B-3
Certificates and Class B-4 Certificates, pro rata, based on any such
Basis Risk Carry Forward Amounts remaining unpaid, to reimburse such
Basis Risk Carry Forward Amounts remaining unpaid;
(Q) from funds on deposit in the Excess Reserve Fund Account
(not including any Interest Rate Cap Payments included in such
account) with respect to such Distribution Date, an amount equal to
any remaining unpaid Basis Risk Carry Forward Amount with respect to
any LIBOR Certificate for such Distribution Date to the LIBOR
Certificates in the same order and priority in which the Accrued
Certificate Interest Distribution Amount is allocated among such
Classes of Certificates, except that the Class A Certificates shall
be paid (a) first, among the Class A-1A Certificates, Class A-1B
Certificates, Class A-2A Certificates, Class A-2B Certificates and
Class A-2C Certificates, pro rata, based upon their respective Class
Certificate Balances (only with respect to those Class A
Certificates with an outstanding Basis Risk Carry Forward Amount)
and (b) second, any remaining amounts to the Class A-1A
Certificates, Class A-1B Certificates, Class A-2A Certificates,
Class A-2B Certificates and Class A-2C Certificates, pro rata, based
on any such Basis Risk Carry Forward Amounts remaining unpaid;
(R) to the Swap Account, the amount of any Defaulted Swap
Termination Payment owed to the Swap Provider;
(S) to the Class X Certificates, the remainder of the Class X
Distributable Amount not distributed pursuant to Sections
4.02(a)(iii)(A)-(R) and any remaining Interest Rate Cap Payments in
the Excess Reserve Fund Account; and
(T) to the Class R Certificates, any remaining amount;
(iv) solely for purposes of interest allocation calculations, the
Interest Remittance Amount attributable to Group I Mortgage Loans will be
allocated:
(a) first, concurrently, to the Class A-1A, and Class A-1B
Certificates, pro rata (based on the amounts distributable or
payable under Section 4.02(a)(i)(B) to the Class A-1A, and Class
A-1B Certificates), the Accrued Certificate Interest Distribution
Amount and any Unpaid Interest Amount for the Class A-1A, and Class
A-1B Certificates, respectively; and
(b) second, concurrently, to the Class A-2A, Class A-2B and
Class A-2C Certificates, pro rata (based on the amounts
distributable or payable
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under Section 4.02(a)(i)(B) to the Class A-2A, Class A-2B and Class
A-2C Certificates), the Accrued Certificate Interest Distribution
Amount and any Unpaid Interest Amount for the Class A-2A, Class A-2B
and Class A-2C Certificates, respectively; and
(v) solely for purposes of interest allocation calculations, the
Interest Remittance Amount attributable to Group II Mortgage Loans will be
allocated:
(a) first, concurrently, to the Class A-2A, Class A-2B and
Class A-2C Certificates, pro rata (based on the amounts
distributable or payable under Section 4.02(a)(i)(B) to the Class
A-2A, Class A-2B and Class A-2C Certificates), the Accrued
Certificate Interest Distribution Amount and any Unpaid Interest
Amount for the Class A-2A, Class A-2B and Class A-2C Certificates,
respectively; and
(b) second, concurrently, to the Class A-1A, and Class A-1B
Certificates, pro rata (based on the amounts distributable or
payable under Section 4.02(a)(i)(B) to the Class A-1A, and Class
A-1B Certificates), the Accrued Certificate Interest Distribution
Amount and any Unpaid Interest Amount for the Class A-1A, and Class
A-1B Certificates, respectively; and
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive in full the related
Accrued Certificate Interest Distribution Amount or the related Unpaid Interest
Amount, if any, then such shortfall will be allocated to the Holders of such
Class, with interest thereon, on future Distribution Dates, as any Unpaid
Interest Amount, subject to the priorities described above.
(b) On each Distribution Date, prior to any distributions on any
other Class of Certificates, all amounts representing Prepayment Charges from
the Mortgage Loans received during the related Prepayment Period shall be
distributed by the Securities Administrator to the holders of the Class P
Certificates. (c) All principal distributions to the Holders of the Class A
Certificates on any Distribution Date shall be allocated concurrently between
the Group I Class A Certificates, on the one hand, and the Group II Class A
Certificates, on the other hand, based on the Class A Principal Allocation
Percentage for the Group I Class A Certificates and the Group II Class A
Certificates, as applicable, for such Distribution Date; provided, however,
that, if the Class Certificate Balances of the Class A Certificates in either
Class A Certificate Group are reduced to zero, then the remaining amount of
principal distributions distributable to the Class A Certificates on such
Distribution Date, and the amount of such principal distributions distributable
on all subsequent Distribution Dates, shall be distributed to the holders of the
Class A Certificates in the other Class A Certificate Group remaining
Outstanding, in accordance with the principal distribution allocations described
in this Section 4.02(c), until their respective Class Certificate Balances have
been reduced to zero. Any distributions of principal to the Group I Class A
Certificates shall be made first from Available Funds relating to the Group I
Mortgage Loans, and any distributions of principal to the Group II Class A
Certificates shall be made first from Available Funds relating to the Group II
Mortgage Loans.
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Any principal distributions allocated to the Group I Class A
Certificates are required to be distributed pro rata between the Class A-1A
Certificates and the Class A-1B Certificates, based on their respective Class
Certificate Balances, unless a Sequential Trigger Event is in effect. If a
Sequential Trigger Event is in effect, principal distributions allocated to the
Group I Class A Certificates will be distributed first to the Class A-1A
Certificates, and second to the Class A-1B Certificates, in each case until the
respective Class Certificate Balance of such Class has been reduced to zero;
provided, however, that on and after the Distribution Date on which the
aggregate Class Certificate Balances of the Subordinated Certificates and the
principal balance of the Class X Certificates have been reduced to zero, any
principal distributions allocated to the Class A-1 Certificates are required to
be allocated pro rata among the Class A-1A and Class A-1B Certificates, based on
their respective Class Certificate Balances.
Any principal allocated to the Group II Class A Certificates shall
be distributed first to the Class A-2A Certificates, until their Class
Certificate Balance has been reduced to zero, then to the Class A-2B
Certificates, until their Class Certificate Balance has been reduced to zero,
and then to the Class A-2C Certificates, until their Class Certificate Balance
has been reduced to zero; provided, however, that on and after the Distribution
Date on which the aggregate Class Certificate Balances of the Subordinated
Certificates and principal balance of the Class X Certificates have been reduced
to zero, any principal distributions allocated to the Group II Class A
Certificates shall be allocated pro rata among the Classes of Group II Class A
Certificates, based on their respective Class Certificate Balances, and
distributed concurrently to the Class A-2A, Class A-2B and Class A-2C
Certificates.
(d) On any Distribution Date, any Relief Act Shortfalls and Net
Prepayment Interest Shortfalls for such Distribution Date shall be allocated by
the Securities Administrator as a reduction in the following order:
(1) First, to the amount of interest payable to the Class X
Certificates; and
(2) Second, pro rata, as a reduction of the Accrued Certificate
Interest Distribution Amount for the Class A, Class M and Class B Certificates,
based on the amount of interest to which such Classes would otherwise be
entitled.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Servicer, the Depositor, the Trustee and each
Rating Agency a statement based on information provided by the Servicer setting
forth with respect to the related distribution:
(i) the actual Distribution Date, the related Record Date, the
Interest Accrual Period(s) for each Class for such Distribution Date and
the LIBOR Determination Date for such Interest Accrual Period;
(ii) the amount of Available Funds;
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(iii) the amount of Available Funds allocable to principal, the
Principal Remittance Amount (separately identifying the components
thereof) and the Principal Distribution Amount (and the calculation
thereof);
(iv) the amount of Available Funds allocable to interest and each
Interest Remittance Amount;
(v) the amount of any Unpaid Interest Amount for each Class included
in such distribution and any remaining Unpaid Interest Amounts after
giving effect to such distribution, any Basis Risk Carry Forward Amount
for each Class and the amount of such Basis Risk Carry Forward Amount
covered by withdrawals from the Excess Reserve Fund Account on such
Distribution Date;
(vi) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation of the shortfall as between principal
and interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(vii) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on such
Distribution Date;
(viii) the Pool Stated Principal Balance for the related
Distribution Date;
(ix) the amount of the Expense Fees paid to or retained by the
Servicer and paid to or retained by the Securities Administrator (stated
separately and in the aggregate) with respect to such Distribution Date;
(x) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(xi) the amount of Advances included in the distribution on such
Distribution Date reported by the Servicer (and the Trustee as successor
servicer and any other successor servicer, if applicable) as of the close
of business on the Determination Date immediately preceding such
Distribution Date;
(xii) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days, 91 or more days, and in such other periods and for
such times as required by Regulation AB, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(xiii) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
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(xiv) with respect to any Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate outstanding principal balance of such Mortgage
Loans as of the close of business on the last Business Day of the
immediately preceding month and the month and year of acquisition of such
REO Properties;
(xv) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the immediately preceding month;
(xvi) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger
Event);
(xvii) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xviii) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xix) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation of it to the Certificateholders with
respect to Unpaid Interest Amounts, Applied Realized Loss Amounts and
Basis Risk Carry Forward Amounts;
(xx) the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments;
(xxi) the calculations of LIBOR and Swap LIBOR;
(xxii) the Subordinated Amount and Specified Subordinated Amount;
(xxiii) Prepayment Charges collected or paid (pursuant to Section
3.07(a)) by the Servicer;
(xxiv) the Cumulative Loss Percentage and the aggregate amount of
Realized Losses used to calculate the Cumulative Loss Percentage;
(xxv) the amount distributed on the Class X Certificates;
(xxvi) the amount of any Subsequent Recoveries for such Distribution
Date; and (xxvii) the number of Mortgage Loans at the beginning and end of
the applicable reporting period, the pool factor, and the weighted average
interest rate, and weighted average remaining term.
In addition, each Form 10-D prepared and filed by the Securities
Administrator pursuant to Section 8.12 shall include the following information
with respect to the related distribution:
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(A) material breaches of Mortgage Loan representations and
warranties of which the Securities Administrator has knowledge or has
received written notice; and
(B) material breaches of any covenants under this Agreement of which
the Securities Administrator has knowledge or has received written notice.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency and the Depositor
is limited, if applicable, to the availability, timeliness and accuracy of the
information received from the Servicer. The Securities Administrator shall make
available the above statement via the Securities Administrator's internet
website. The Securities Administrator's website will initially be located at
_______________ and assistance in using the website can be obtained by calling
the Securities Administrator's customer service desk at _______________. Parties
that are unable to use the website are entitled to have a paper copy mailed to
them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator may change the way the monthly statements to
Certificateholders 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. As a condition to access the Securities
Administrator's internet website, the Securities Administrator may require
registration and the acceptance of a disclaimer. The Securities Administrator
will not be liable for the dissemination of information in accordance with this
Agreement.
The Securities Administrator shall make available to each Analytics
Company via the Securities Administrator's internet website each statement to
Certificateholders prepared pursuant to this Section 4.03(a). The Securities
Administrator and the Servicer shall cooperate in good faith with the Depositor
to reconcile any discrepancies in such statements, and the Securities
Administrator shall provide any corrections to such statements to each Analytics
Company within ten Business Days of the related Distribution Date.
The Securities Administrator will also be entitled to rely on but
shall not be responsible for the content or accuracy of any information provided
by third parties for purposes of preparing the monthly statement to
Certificateholders and may affix thereto any disclaimer it deems appropriate in
its reasonable discretion (without suggesting liability on the part of any other
party hereto).
(c) Within a reasonable period of time after the end of each
calendar year, the Securities Administrator shall cause to be furnished to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(i) and (a)(ii) of
this Section 4.03 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 Securities
Administrator pursuant to any requirements of the Code as from time to time in
effect.
(d) Not later than three Business Days following the Determination
Date and in no event later than the ___ calendar day of each month, the Servicer
shall furnish to the
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Depositor with respect to clause (i) below and the Securities Administrator with
respect to clause (ii) below, a monthly remittance advice statement (the
"Servicer Remittance Report") (in a format substantially similar to that
attached as Exhibit V to this Agreement) containing such information as shall be
reasonably requested (to the extent such information is available to the
Servicer), (i) by the Depositor or the Responsible Party to enable the Depositor
to disclose "static pool information", as required by Item 1105 of Regulation
AB, with respect to the Mortgage Loans, and (ii) by the Securities Administrator
to enable the Securities Administrator to provide the reports required by
Section 4.03(a) as to the accompanying remittance. The Servicer shall
concurrently deliver to the Depositor and the Responsible Party a data tape, in
a format substantially similar to that attached as Exhibit V to this Agreement,
containing the information required pursuant to this Section 4.03(d) on a
loan-by-loan basis for all of the Mortgage Loans. Not later than three Business
Days following the Determination Date and in no event later than the ___
calendar day of each month, the Servicer shall furnish to the Depositor a
default report (the "Default Report").
The Servicer Remittance Report shall, at a minimum, document, on
such Determination Date, Mortgage Loan payment activity on an individual
Mortgage Loan basis, as follows:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Charges, received during the related Prepayment Period along
with a detailed report of interest on principal prepayment amounts
remitted);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of Servicing Fees received by the Servicer during
the prior distribution period; and
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans.
The Default Report shall, at a minimum, document, on such
Determination Date, Mortgage Loan payment activity on an individual Mortgage
Loan basis, as follows:
(i) the aggregate expenses reimbursed to the Servicer during the
prior distribution period pursuant to Section 3.11; and
(ii) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent 31 to 60 days, 61 to 90 days, 91 days or
more, and in such other periods and for such times as required by
Regulation AB; (b) as to which foreclosure or bankruptcy proceedings of
the related mortgagor have commenced; and (c) as to which REO Property has
been acquired.
(e) For all purposes of this Agreement, with respect to any Mortgage
Loan, delinquencies shall be determined and reported by the Securities
Administrator, from
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information provided by the Servicer, based on the "OTS" methodology for
determining delinquencies on mortgage loans similar to the Mortgage Loans. By
way of example, a Mortgage Loan would be delinquent with respect to a Scheduled
Payment due on a Due Date if such Scheduled Payment is not made by the close of
business on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan
would be more than 30-days Delinquent with respect to such Scheduled Payment if
such Scheduled Payment were not made by the close of business on the Mortgage
Loan's second succeeding Due Date. The Servicer hereby represents and warrants
to the Depositor that the Servicer is not subject to any delinquency recognition
policy established by the primary safety and soundness regulator, if any, of the
Servicer, that is more restrictive than the foregoing delinquency recognition
policy.
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of LIBOR. Until all of the LIBOR Certificates are paid in full, the
Securities Administrator will at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). Each "Reference Bank" shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Securities Administrator and shall have an established place
of business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
(i) The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Securities
Administrator on each LIBOR Determination Date so long as the LIBOR
Certificates are Outstanding on the basis of LIBOR and the respective
formulae appearing in footnotes corresponding to the LIBOR Certificates in
the table relating to the Certificates in the Preliminary Statement. The
Securities Administrator shall not have any liability or responsibility to
any Person for its inability, following a good-faith reasonable effort, to
obtain quotations from the Reference Banks or to determine the arithmetic
mean referred to in the definition of LIBOR, all as provided for in this
Section 4.04 and the definition of LIBOR. The establishment of LIBOR and
each Pass-Through Rate for the LIBOR Certificates by the Securities
Administrator shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
to the most junior Class of Subordinated Certificates then Outstanding in
reduction of the Class Certificate Balance thereof.
Section 4.06 Swap Account. On the Closing Date, the Securities
Administrator shall establish and maintain in its name, a separate non-interest
bearing trust account for the
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benefit of the holders of the LIBOR Certificates (the "Swap Account") as a part
of the Trust Fund. The Swap 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 Securities Administrator held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts for that Distribution
Date will be deposited into the Swap Account. Funds in the Swap Account will be
distributed in the following order of priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment, other than a Defaulted Swap Termination
Payment, to the Swap Provider, if any, owed for that Distribution Date;
(ii) to the Class A Certificates, to pay Accrued Certificate
Interest Distribution Amounts and, if applicable, any Unpaid Interest
Amounts as described in Section 4.02(a)(i), to the extent unpaid from
Available Funds;
(iii) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates, in that order, to
pay Accrued Certificate Interest Distribution Amounts and, if applicable,
any Unpaid Interest Amounts as described in Section 4.02(a)(i) and (iii),
to the extent unpaid from Available Funds;
(iv) to the LIBOR Certificates, to pay Basis Risk Carry Forward
Amounts as described in Section 4.02(a)(iii)(P)-(Q), to the extent unpaid
from Available Funds (including Basis Risk Payments on deposit in the
Excess Reserve Fund Account);
(v) sequentially, to the Class A, Class M-1, Class M-2, Class M-3,
Class B-1, Class B-2, Class B-3 and Class B-4 Certificates, in that order,
to pay principal as described in Section 4.02(a)(ii)(A) or Section
4.02(a)(ii)(B), as applicable, but only to the extent necessary to restore
the Subordinated Amount at the Specified Subordinated Amount as a result
of current or prior Realized Losses not previously reimbursed, after
giving effect to payments and distributions from Available Funds;
(vi) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates, in that order, to
pay any Unpaid Interest Amounts as described in Section 4.02(a)(iii), to
the extent unpaid from Available Funds;
(vii) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and (viii) to the
holders of the Class X Certificates, any remaining amounts.
Upon termination of the Trust, any amounts remaining in the Swap
Account shall be distributed pursuant to the priorities set forth in this
Section 4.06.
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The Securities Administrator shall account for the Swap Account as
an asset of a grantor trust under subpart E, Part I of subchapter J of the Code
and not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Swap Account are the Class X Certificateholders. For
federal income tax purposes, Net Swap Payments and Swap Termination Payments
payable to the Swap Provider shall be deemed to be paid to the Swap Account from
the Upper Tier REMIC, first, by the Holder of the Class X Certificates (in
respect of the Class IO Interest and, if applicable, Class X Interest) and
second, other than any Defaulted Swap Termination Payment, by the Holders of the
applicable Class or Classes of LIBOR Certificates (in respect of Class IO
Shortfalls) as and to the extent provided in Section 8.13.
Any Basis Risk Carry Forward Amounts and, without duplication,
Upper-Tier Carry Forward Amounts distributed by the Securities Administrator to
the LIBOR Certificateholders from the Excess Reserve Fund Account or the Swap
Account shall be accounted for by the Securities Administrator, for federal
income tax purposes, as amounts paid first to the Holders of the Class X
Certificates (in respect of the Class X Interest or the Class IO Interest,
respectively) and then to the respective Class or Classes of LIBOR Certificates.
In addition, the Securities Administrator shall account for the rights of
Holders of each Class of LIBOR Certificates to receive payments of Basis Risk
Carry Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts
from the Swap Account (along with Basis Risk Carry Forward Amounts payable from
the Excess Reserve Fund Account) as rights in a separate limited recourse
interest rate cap contract written by the Class X Certificateholders in favor of
Holders of each such Class.
The Swap Account shall be an "outside reserve fund" for federal
income tax purposes and not an asset of any Trust REMIC. Furthermore, the
Holders of the Class X Certificates shall be the beneficial owners of the Swap
Account for all federal income tax purposes, and shall be taxable on all income
earned thereon, and any amounts reimbursed from the Upper-Tier REMIC to the Swap
Account shall be treated as having been distributed to the Holders of the Class
X Certificates.
In the event the Swap Provider does not deliver the Delivery Amount
(as defined in the Interest Rate Swap Agreement) to the Securities
Administrator, the Securities Administrator shall provide notice of such failure
to the Swap Provider within one Business Day of such failure.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount) and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class X and Class P Certificates in the name of the Depositor or
its designee. On a date as to which the
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Depositor notifies the Securities Administrator, the Securities Administrator
shall transfer the Class X and Class P Certificates in the name of the NIM
Trustee, or such other name or names as the Depositor shall request, and to
deliver the Class X and Class P Certificates to the NIM Trustee or to such other
Person or Persons as the Depositor shall request.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Holder has so notified the Securities Administrator at least five Business
Days prior to the related Record Date or (y) by check mailed by first class mail
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
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
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
authentication and delivery of any 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 authenticated
by the Securities Administrator by manual signature, and such authentication
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 authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, 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 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.
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No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is 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 said Act and such state securities laws. In
determining whether a transfer is being made pursuant to an effective
registration statement, the Securities Administrator shall be entitled to rely
solely upon a written notice to such effect from the Depositor. Neither the
Securities Administrator nor the Trustee shall be under any obligation to
register or cause the registration of any Certificates under the Securities Act
or any applicable state securities laws or to take any other action not
otherwise required under this Agreement to permit the transfer of any
Certificate without registration. Except with respect to (i) the transfer of the
Class X, Class P or Class R Certificates to the Depositor or an Affiliate of the
Depositor, (ii) the transfer of the Class X or Class P Certificates to the NIM
Issuer or the NIM Trustee, or (iii) a transfer of the Class X or Class P
Certificates from the NIM Issuer or the NIM Trustee to the Depositor or an
Affiliate of the Depositor, in the event that a transfer of a Private
Certificate which is a Physical Certificate 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
such transfer shall certify to the Securities Administrator in writing the facts
surrounding the transfer in substantially the form set forth in Exhibit H (the
"Transferor Certificate") and either (i) there shall be delivered to the
Securities Administrator a letter in substantially the form of Exhibit I (the
"Rule 144A Letter") or (ii) there shall be delivered to the Securities
Administrator at the expense of the transferor an Opinion of Counsel that such
transfer may be made without registration under the Securities Act. In the event
that a transfer of a Private Certificate which is a Book-Entry Certificate 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 such transfer will be deemed to have made
as of the transfer date each of the certifications set forth in the Transferor
Certificate in respect of such Certificate and the transferee will be deemed to
have made as of the transfer date each of the certifications set forth in the
Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. As directed by the
Depositor, the Securities Administrator shall provide to any Holder of a Private
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 Depositor and the Servicer shall cooperate
with the Securities Administrator in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Securities
Administrator such information regarding the Certificates, the Mortgage Loans
and other matters regarding the Trust Fund as the Depositor shall reasonably
determine to meet its obligation under
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the preceding sentence. Each Holder of a Private Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Securities Administrator, the Servicer and the Depositor 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.
Except with respect to (i) the transfer of the Class X, Class P or
Class R Certificates to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor, no
transfer of an ERISA-Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator (in the event such Certificate is a
Private Certificate or a Residual Certificate, such requirement is satisfied
only by the Securities Administrator's receipt of a representation letter from
the transferee substantially in the form of Exhibit I), to the effect that such
transferee is not an employee benefit plan or arrangement subject to Section 406
of ERISA, a plan subject to Section 4975 of the Code or a plan subject to any
Federal, state or local law ("Similar Law") materially similar to the foregoing
provisions of ERISA or the Code, nor a Person acting on behalf of any such plan
or arrangement nor using the assets of any such plan or arrangement to effect
such transfer, or (ii) in the case of an ERISA-Restricted Certificate other than
a Residual Certificate or a Class P Certificate that has been the subject of an
ERISA-Qualifying Underwriting, and the purchaser is an insurance company, a
representation that the purchaser is an insurance company that 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
or Class P Certificate presented for registration in the name of an employee
benefit plan subject to Title I of ERISA, a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a plan subject to Similar Law, or a trustee of any such plan or
any other Person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Securities Administrator and the Servicer, which Opinion of Counsel shall not be
an expense of the Depositor, the Securities Administrator, the Servicer or the
Trust Fund, addressed to the Securities Administrator, to the effect that the
purchase or holding of such ERISA-Restricted Certificate will not constitute or
result in a non-exempt prohibited transaction within the meaning of ERISA,
Section 4975 of the Code or any Similar Law and will not subject the Depositor,
the Securities Administrator or the Servicer to any obligation in addition to
those expressly undertaken in this Agreement or to any liability. For purposes
of the preceding sentence, with respect to an ERISA-Restricted Certificate that
is not a Private Certificate or a Residual Certificate, in the event the
representation letter referred to in the preceding sentence is not furnished,
such representation 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. Notwithstanding anything else to the
contrary herein, (a) any purported transfer of an ERISA-Restricted Certificate,
other than a Class P Certificate or Residual Certificate, to or on behalf of an
employee benefit plan subject to ERISA, the Code or Similar Law without the
delivery to the Securities Administrator of an Opinion of Counsel satisfactory
to the Securities Administrator as described above shall be void and of no
effect and
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(b) any purported transfer of a Class P Certificate or Residual Certificate to a
transferee that does not make the representation in clause (i) above shall be
void and of no effect.
None of the Class R or Class P Certificates may be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to Section
4975 of the Code, or any plan subject to any Similar Law or any Person investing
on behalf or with plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, 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 5.02(b) 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.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate other than an ERISA Restricted Certificate, or
any interest therein, shall be deemed to have represented that either (i) it is
not a Plan or (ii) the acquisition and holding of the Certificate are eligible
for the exemptive relief available under at least one of (i) Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 84-14 (for transactions by
independent "qualified professional asset managers"), (ii) PTCE 91-38 (for
transactions by bank collective investment funds), (iii) ▇▇▇▇ ▇▇-▇ (for
transactions by insurance company pooled separate accounts), PTCE 95-60 (for
transactions by insurance company general accounts) or (iv) PTCE 96-23 (for
transactions effected by "in-house asset managers") or similar exemption under
similar law.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator shall have been furnished with an affidavit
(a "Transfer Affidavit") of the initial owner or the proposed transferee
in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee,
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trustee or agent in connection with any Transfer of a Residual Certificate
and (C) not to Transfer its Ownership Interest in a Residual Certificate
or to cause the Transfer of an Ownership Interest in a Residual
Certificate to any other Person if it has actual knowledge that such
Person is a Non-Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The 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 Section 5.02(b) and
this Section 5.02(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 after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Securities Administrator shall
be entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact a Non-Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became a Non-Permitted
Transferee, all payments made on such Residual Certificate at and after
either such time. Any such payments so recovered by the Securities
Administrator shall be paid and delivered by the Securities Administrator
to the last preceding Permitted Transferee of such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is a Non-Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Trustee or the Servicer, to the effect that the elimination of such restrictions
will not cause any Trust REMIC to fail to qualify as a REMIC at any time that
the Certificates are Outstanding or result in the imposition of any tax on the
Trust Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Residual Certificate hereby consents to
any amendment of this Agreement which, based on an Opinion of Counsel furnished
to the Securities Administrator and the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is a
Non-Permitted Transferee and (b) to provide for a means to compel the Transfer
of a Residual Certificate which is held by a Person that is a Non-Permitted
Transferee to a Holder that is a Permitted Transferee.
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(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(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.
If (x) (i) 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 (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository and, upon receipt of notice of such intent from
the Depository, the Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to initiate such termination, 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 Certificates (the "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. None of the Servicer, the Depositor or 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
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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 Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Securities Administrator in accordance with its customary practice. No
service charge shall be made for any registration of transfer or exchange of
Private Certificates, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Private Certificates.
Section 5.03 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, the Servicer and the Securities Administrator such security or
indemnity as may be required by them to hold 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,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, 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 5.03 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 5.04 Persons Deemed Owners. The Servicer, the Securities
Administrator, the Depositor and any agent of the Servicer, the Depositor or the
Securities Administrator may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Servicer, the Securities Administrator, the
Depositor, nor any agent of the Servicer, the Depositor or the Securities
Administrator shall be affected by any notice to the contrary.
Section 5.05 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 or Servicer shall request such information in
writing from the Securities Administrator, then the Securities Administrator
shall, within ten Business Days after the receipt
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of such request, provide the Depositor, the Servicer 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 5.06 Maintenance of Office or Agency. The Securities
Administrator will 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 offices located at _____________. The Securities Administrator
shall give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
ARTICLE VI
THE DEPOSITOR, THE SERVICER
AND THE LOAN PERFORMANCE ADVISOR
Section 6.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer. (a) The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a corporation or federally chartered savings
bank, as the case may be, under the laws of the United States or under the laws
of one of the states thereof and will each obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
(b) The Servicer is and shall continue to be an institution which is
a ▇▇▇▇▇▇ ▇▇▇-approved and ▇▇▇▇▇▇▇ Mac-approved seller/servicer in good standing,
shall maintain a net worth of at least $30,000,000 (as determined in accordance
with generally accepted accounting principles) and shall maintain its license to
do business or service residential mortgage loans in any jurisdictions in which
the Mortgaged Properties are located.
(c) Any Person into which the Depositor or the Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Servicer, shall be the
successor of the Depositor or the Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Servicer shall
make the covenant set forth in Section 6.02(b). As a condition to the succession
to the Servicer under this Agreement by any Person (i) into which the Servicer
may be merged or consolidated, or (ii) which may be appointed as a successor to
a Servicer, the Servicer shall provide to the Depositor, at least 15 calendar
days prior to the
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effective date of such succession or appointment, (x) written notice to the
Depositor of such succession or appointment and (y) in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
necessary to enable the Securities Administrator, pursuant to Section 8.12(g),
to accurately and timely report the event under Item 6.02 of Form 8-K pursuant
to the Exchange Act (if such reports under the Exchange Act are required to be
filed under the Exchange Act).
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others. Neither the Depositor, the Servicer, nor any of their respective
directors, officers, employees or agents shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Servicer or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Servicer or any such Person from
any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence (or gross negligence in the case of the
Depositor) in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, its Affiliates, the Servicer
and any of their respective directors, officers, employees or agents 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,
its Affiliates, the Servicer and any of their respective directors, officers,
employees or agents 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 Certificates or the Loan
Performance Advisor Agreement 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 (or gross negligence in the case of the Depositor) 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 respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that the Depositor
may in its discretion undertake any such action (or direct the Trustee to
undertake such actions pursuant to Section 2.03 for the benefit of the
Certificateholders) 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 Collection Account.
Neither the Servicer nor any of the officers, employees or agents of
the Servicer shall be under any liability to the Trustee or the Depositor for
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement; provided, however, that this provision shall not
protect the Servicer or any such person against any breach of warranties or
representations made herein, or failure to perform its obligations in strict
compliance with the terms of this Agreement, or any liability which would
otherwise be imposed by reason of any breach of the terms and conditions of this
Agreement. The Servicer and any officer, employee or agent of the Servicer may
rely in good faith on any document of any kind prima facie properly
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executed and submitted by any Person respecting any matters arising hereunder.
The Servicer shall not be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve it
in any expenses or liability; provided, however, that the Servicer may undertake
any such action which it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto. In such event, the
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities for which the Trust Fund will be
liable, and the Servicer shall be entitled to be reimbursed therefor out of the
Collection Account.
Section 6.04 Limitation on Resignation of the Servicer. Subject to
Section 6.02 and 7.01, the Servicer shall not assign this Agreement or resign
from the obligations and duties hereby imposed on it except by mutual consent of
the Servicer, the Depositor and the Trustee or (i) upon the determination that
the performance of its obligations or duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it or its subsidiaries or Affiliates,
the other activities of the Servicer so causing such a conflict being of a type
and nature carried on by the Servicer or its subsidiaries or Affiliates at the
date of this Agreement or (ii) upon satisfaction of the following conditions:
(a) the Servicer has proposed a successor servicer to the Trustee and (b) each
Rating Agency shall have delivered a letter to the Trustee prior to the
appointing of the successor servicer stating that the proposed appointment of
such successor servicer as Servicer hereunder will not result in the reduction
or withdrawal of the then current rating of the Certificates; provided, however,
that no such resignation by the Servicer shall become effective until such
successor servicer or, in the case of (i) above, the Trustee shall have assumed
the Servicer's responsibilities and obligations hereunder or the Trustee shall
have designated a successor servicer in accordance with Section 7.02. Any such
resignation shall not relieve the Servicer of responsibility for any of the
obligations specified in Sections 7.01 and 7.02 as obligations that survive the
resignation or termination of the Servicer. Any such determination permitting
the resignation of the Servicer pursuant to (i) above shall be evidenced by an
Opinion of Counsel to such effect delivered to the Depositor and the Trustee
which Opinion of Counsel shall be in form and substance acceptable to the
Depositor and the Trustee. No such resignation shall become effective until a
successor shall have assumed in writing the Servicer's responsibilities and
obligations hereunder.
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims.
(a) The Servicer shall indemnify the Responsible Party, the Sponsor,
the Depositor, the Trustee, the Securities Administrator (unless the Servicer
and Securities Administrator are Affiliates), and any Affiliate, director,
officer, employee or agent of each and hold them harmless against any and all
third party claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other costs, fees
and expenses that any of them may sustain in any way related to (i) any breach
by the Servicer, of any of its representations and warranties referred to in
Section 2.03(a), (ii) any error in any tax or information return prepared by the
Servicer, or (iii) the failure of the Servicer to perform its duties and service
the Mortgage Loans in strict compliance with the terms of this Agreement
(including, without limitation, the failure to deliver accurate and complete
information on a timely basis pursuant to Section 4.03(d)). The Servicer
immediately shall
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notify the Depositor, the Responsible Party and the Trustee if a claim is made
by a third party with respect to this Agreement or the Mortgage Loans, assume
(with the prior written consent of the Depositor, the Responsible Party and the
Trustee) 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 the Responsible Party, the
Depositor or the Trustee in respect of such claim.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Servicer shall indemnify the Depositor, the Sponsor, the
Securities Administrator (unless the Servicer and Securities Administrator are
Affiliates), the Trustee and any director, officer, employee or agent of the
Depositor, the Sponsor, the Securities Administrator (unless the Servicer and
Securities Administrator are Affiliates) or the Trustee and hold them harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain in any way related to any
failure by the Servicer or any Subservicer engaged by the Servicer or any
Subcontractor utilized by the Servicer to deliver any information, report,
certification or accountants' letter when and as required under Sections 3.22,
3.23, 6.02 or 8.12, including without limitation any failure by the Servicer to
identify pursuant to Section 3.02(e) any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB.
(c) If the indemnification provided for in this Section 6.05 is
unavailable or insufficient to hold harmless any Person entitled to
indemnification thereunder, then the Servicer shall contribute to the amount
paid or payable by the Person entitled to indemnification as a result of the
losses, claims, damages or liabilities of such Person in such proportion as is
appropriate to reflect the relative fault of such Person on the one hand and the
Servicer, on the other, in connection with the Servicer's obligations pursuant
to this Section 6.05. This Section 6.05 shall survive the termination of this
Agreement or the earlier resignation or removal of the Servicer.
Section 6.06 Duties of the Loan Performance Advisor. The Loan
Performance Advisor shall perform its obligations under the Loan Performance
Advisor Agreement.
Section 6.07 Loan Performance Advisor's Fees. On each Distribution
Date the Securities Administrator shall withdraw from the Distribution Account
the Loan Performance Advisor Fee and pay such fee to the Loan Performance
Advisor as compensation for its activities under this Agreement.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default", wherever used
herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Securities
Administrator any payment required to be made under the terms of this Agreement
which continues unremedied for
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a period of one Business Day after the date upon which written notice of such
failure is received by facsimile and confirmed by telephone pursuant to
11.05(c), requiring the same to be remedied, shall have been given to the
Servicer by the Depositor, by the Trustee or by the Securities Administrator, or
to the Servicer, the Depositor, the Trustee and the Securities Administrator by
Certificateholders entitled to at least 25% of the Voting Rights in the
Certificates; or
(b) the failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement which continues unremedied for
a period of forty-five days (except that (x) such number of days shall be
fifteen in the case of a failure to pay any premium for any insurance policy
required to be maintained under this Agreement and (y) such number of days shall
be ten in the case of a failure to observe or perform any of the obligations set
forth in Sections 3.02, 3.22, 3.23, 6.02 or 8.12) 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 Servicer by the Depositor or by the Trustee, or to
the Servicer, the Depositor, by the Securities Administrator, the Trustee and
the Securities Administrator by Certificateholders entitled to at least 25% of
the Voting Rights in the Certificates and (ii) actual knowledge of such failure
by a Servicing Officer of the Servicer; or
(c) a 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 insolvency, bankruptcy, 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 Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty consecutive days; or
(d) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(e) the Servicer shall admit in writing its inability generally to
pay its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) any failure of the Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(g) a breach of any representation and warranty of the Servicer
referred to in Section 2.03(a), which materially and adversely affects the
interests of the Certificateholders and which continues unremedied for a period
of thirty days after the date upon which written notice of such breach is given
to the Servicer by the Trustee, by the Securities Administrator or by the
Depositor, or to the Servicer, the Trustee, the Securities Administrator and the
Depositor by Certificateholders entitled to at least 25% of the Voting Rights in
the Certificates; or
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(h) any withdrawal or downgrade of two or more levels of _________
servicer rating by any rating agency that results in a downgrade, qualification
or withdrawal of the rating assigned to any class of the certificates by any
rating agency.
If an Event of Default described in clauses (a) through (h) of this
Section 7.01 shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, and at the
written direction of a majority of the Voting Rights, the Trustee shall, by
notice in writing to the Servicer (with a copy to each Rating Agency), terminate
all of the rights and obligations of the Servicer under this Agreement and in
and to the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder; provided, however, that the Trustee shall not be
required to give written notice to the Servicer of the occurrence of an Event of
Default unless and until a Responsible Officer of the Trustee has actual
knowledge of the occurrence of such an event. In the event that a Responsible
Officer of the Trustee has actual knowledge of the occurrence of an event of
default described in clause (f) of this Section 7.01, the Trustee shall give
written notice by facsimile with confirmation by telephone to the Servicer of
the occurrence of such an event within one Business Day of the first day on
which such Responsible Officer obtains actual knowledge of such occurrence. On
and after the receipt by the Servicer of such written notice by facsimile and
confirmation by telephone, all authority and power of the Servicer hereunder,
whether with respect to the Mortgage Loans or otherwise, shall, subject to
Section 7.02, pass to and be vested in the Trustee. Subject to Section 7.02, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Servicer to pay
amounts owed pursuant to Article VIII. The Servicer agrees to cooperate with the
Trustee in effecting the termination of the Servicer's responsibilities and
rights hereunder, including, without limitation, the transfer to the Trustee of
all cash amounts which shall at the time be credited to the Collection Account,
or thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall be entitled to receive from the Trust Fund, prior
to transfer of its servicing obligations hereunder, payment of all accrued and
unpaid Servicing Fees and reimbursement for all outstanding P&I Advances and
Servicing Advances.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Servicer receives a notice of termination pursuant to Section 7.01,
the Trustee shall, subject to and to the extent provided in Section 3.24, be the
successor to the Servicer in its capacity as servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof and applicable law including the
obligation to make P&I Advances and Servicing Advances pursuant to Section 4.01.
It is understood and acknowledged by the parties hereto that there will be a
period of transition before the transfer of servicing obligations is fully
effective. Notwithstanding the foregoing, the Trustee will have a period (not to
exceed 90 days) to complete the transfer of all servicing data and correct or
manipulate such
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servicing data as may be required by the Trustee to correct any errors or
insufficiencies in the servicing data or otherwise enable the Trustee to service
the Mortgage Loans in accordance with Accepted Servicing Practices. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Servicer would have been entitled to charge to the
Collection Account if the Servicer had continued to act hereunder including, if
the Servicer was receiving the Servicing Fee, the Servicing Fee and the income
on investments or gain related to the Collection Account which the Servicer
would be entitled to receive. Notwithstanding the foregoing, if the Trustee has
become the successor to the Servicer in accordance with Section 7.02, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making P&I Advances and Servicing Advances pursuant to
Section 4.01, if it is otherwise unable to so act or at the written request of
Certificateholders entitled to at least a majority of the Voting Rights,
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each Rating
Agency, as the successor to the Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Servicer
hereunder. Any successor to the Servicer shall make the covenant set forth in
Section 6.02(b). Any successor to the Servicer shall be an institution which is
willing to service the Mortgage Loans and which executes and delivers to the
Depositor and the Trustee an agreement accepting such delegation and assignment,
containing an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer (other than
liabilities of the Servicer under Section 6.03 incurred prior to termination of
the Servicer under Section 7.01), with like effect as if originally named as a
party to this Agreement; provided, that each Rating Agency acknowledges that its
rating of the Certificates in effect immediately prior to such assignment and
delegation will not be qualified or reduced, as a result of such assignment and
delegation. Pending appointment of a successor to the Servicer hereunder, the
Trustee, unless the Trustee is prohibited by law from so acting, shall, subject
to Section 3.24, act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Trustee may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree; provided, however, that no such compensation shall
be in excess of the Servicing Fee Rate and amounts paid to the Servicer from
investments. The Trustee and such successor Servicer shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Trustee nor any other successor to the Servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the Servicer to deliver or provide, or
any delay in delivering or providing, any cash, information, documents or
records to it.
In the event that the Servicer is terminated pursuant to Section
7.01, the terminated Servicer shall provide notices to the Mortgagors, transfer
the Servicing Files to a successor Servicer and pay all of its own out-of-pocket
costs and expenses at its own expense. In addition, in the event that the
Servicer is terminated pursuant to Section 7.01, the terminated Servicer shall
pay all reasonable out-of-pocket costs and expenses of a servicing transfer
incurred by parties other than the terminated Servicer (including, without
limitation, any costs or expenses (including but not limited to personnel time)
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may
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be required by the Trustee or successor servicer to correct ay errors or
insufficiencies in the servicing data or otherwise to enable the Trustee or
successor servicer to service the Mortgage Loans properly and effectively, but
excluding set-up costs and other administrative expenses of the successor
Servicer, in which case the successor Servicer shall pay for such costs and
expenses but shall not be entitled to reimbursement therefor from the Trust
Fund), such an amount shall be paid by the terminated Servicer promptly upon
presentation of reasonable documentation of such costs. If the Trustee is the
predecessor Servicer (except in the case where the Trustee in its role as
successor Servicer is being terminated pursuant to Section 7.01 by reason of an
Event of Default caused solely by the Trustee as the successor Servicer and not
by the predecessor Servicer's actions or omissions), such costs shall be paid by
the prior terminated Servicer promptly upon presentation of reasonable
documentation of such costs. If the terminated Servicer defaults in its
obligation to pay such costs and expenses, the same shall be paid by the
successor Servicer, in which case the successor Servicer shall be entitled to
reimbursement therefor from the Trust Fund.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its service
as servicer, maintain in force the policy or policies that the Servicer is
required to maintain pursuant to Section 3.13.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default of
which a Responsible Officer of the Trustee has actual knowledge, the Trustee
shall transmit by mail to all Certificateholders and each Rating Agency notice
of each such Event of Default, unless such event shall have been cured or
waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
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No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct.
Unless an Event of Default known to the Trustee has occurred and is
continuing:
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believes in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement; and
(d) the Trustee shall not be accountable, shall have no liability
and makes no representation as to any acts or omissions hereunder of the
Servicer or the Securities Administrator.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
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(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than in its corporate capacity as
obligor of the investment security and with respect to the investment of funds
in the Distribution Account);
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of an Event of Default, the Trustee shall not be deemed to
have knowledge of an Event of Default, until a Responsible Officer of the
Trustee shall have received written notice thereof; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
The Trustee shall have no responsibility for filing or recording any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the
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perfection of any security interest or lien granted to it hereunder (unless the
Trustee shall have become the successor Servicer).
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee shall be paid a fee by the
Securities Administrator. The Trustee and any director, officer, employee, or
agent of the Trustee shall be indemnified by the Trust Fund and held harmless
against any loss, liability, or expense (including reasonable attorney's fees)
resulting from any error in any tax or information return prepared by the
Servicer or incurred in connection with:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to Section 6.05,
(ii) resulting from any breach of the Responsible Party's obligations in
connection with this Agreement for which the Responsible Party has performed its
obligation to indemnify the Trustee pursuant to Section 2.03(h) or (iii)
incurred because of willful misconduct, bad faith, or negligence in the
performance of any of the Trustee's duties under this Agreement. This indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee under this Agreement. Without limiting the foregoing, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any expense, disbursement, or advance arising from the Trustee's negligence,
bad faith, or willful misconduct, the Trust Fund shall pay or reimburse the
Trustee for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of
the Certificates, and
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement.
Except as otherwise provided in this Agreement or a separate letter
agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other routine expenses incurred by
the Trustee; provided, however, no expense shall be reimbursed hereunder
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if it would not constitute an "unanticipated expense incurred by the REMIC"
within the meaning of the REMIC Provisions.
Section 8.06 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause any of
the Rating Agencies to reduce their respective then current ratings of the
Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its Affiliates or the Servicer and its Affiliates; provided,
however, that such entity cannot be an Affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the Servicer.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicer and each Rating
Agency not less than 60 days before the date specified in such notice, when,
subject to Section 8.08, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.08 meeting the qualifications set
forth in Section 8.06. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, one copy of which shall
be delivered to the Trustee, one copy to the Servicer and one copy to the
successor trustee.
The Holders of Certificates entitled to at least a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete
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set to the Trustee so removed and one complete set to the successor so
appointed. The successor trustee shall notify each Rating Agency of any removal
of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicer 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. The Depositor, the Servicer and
the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties, and
obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
of such succession or appointment and shall furnish to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably necessary for the Securities Administrator to accurately
and timely report, pursuant to Section 8.12(g), the event under Item 6.02 of
Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act
are required to be filed under the Exchange Act).
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have
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the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of
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this Agreement relating to the conduct of, affecting the liability of, or
affording protection and indemnity to, the Trustee. Every such instrument shall
be filed with the Trustee and a copy thereof given to the Servicer and the
Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each Trust REMIC and that in such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit (REMIC) Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file with the Internal
Revenue Service and applicable state or local tax authorities income tax or
information returns for each taxable year with respect to each Trust REMIC
containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish to Certificateholders the schedules, statements or information at such
times and in such manner as may be required thereby;
(b) within thirty days of the Closing Date, the Securities
Administrator will apply for an employer identification number from the Internal
Revenue Service via Form SS-4 or any other acceptable method for all tax
entities and shall also furnish to the Internal Revenue Service, on Form 8811 or
as otherwise may be required by the Code, the name, title, address, and
telephone number of the person that the Holders of the Certificates may contact
for tax information relating thereto, together with such additional information
as may be required by such Form, and update such information at the time or
times in the manner required by the Code;
(c) make an election that each of Pooling Tier REMIC-1, Pooling Tier
REMIC-2, the Lower Tier REMIC and the Upper Tier REMIC be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
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(e) provide information necessary for the computation of tax imposed
on the Transfer of a Residual Certificate to a Person that is a Non-Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are Outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on each Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Trustee or such other Person as may be required to sign such
returns by the Code or state or local laws, regulations or rules; and
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the adjusted basis of the assets
determined at such intervals as may be required by the Code, as may be necessary
to prepare the foregoing returns, schedules, statements or information.
The Holder of the largest Percentage Interest of the Class R
Certificates shall act as Tax Matters Person for each Trust REMIC, in each case,
within the meaning of Treasury Regulations Section 1.860F-4(d), and the
Securities Administrator is hereby designated as agent of such Certificateholder
for such purpose (or if the Securities Administrator is not so permitted, such
Holder shall be the Tax Matters Person in accordance with the REMIC Provisions).
In such capacity, the Securities Administrator shall, as and when necessary and
appropriate, represent any Trust REMIC in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of any
Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any Trust
REMIC, and otherwise act on behalf of each REMIC in relation to any tax matter
or controversy involving it.
The Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Charges, the rights of the Class X
Certificateholders to receive Interest Rate Cap Payments and amounts in the
Excess Reserve Fund Account and the Swap Account
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(subject, other than in the case of the Class X Certificates, to the obligation
to pay Basis Risk Carry Forward Amounts and, without duplication, Upper Tier
Carry Forward Amounts) and the rights of the LIBOR Certificateholders to receive
Basis Risk Carry Forward Amounts and, without duplication, Upper Tier Carry
Forward Amounts as the beneficial ownership of interests in a grantor trust, and
not as an obligation of any Trust REMIC created hereunder, for federal income
tax purposes. The Securities Administrator shall file or cause to be filed with
the IRS together with Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished, to the Class P Certificateholders, the
Class X Certificateholders and the LIBOR Certificateholders, the respective
amounts described above that are received, in the time or times and in the
manner required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value to each Class
of Certificates of the right to receive Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account and Basis Risk Carry Forward Amounts or, without
duplication, Upper Tier Carry Forward Amounts from the Swap Account. Unless
otherwise advised by the Depositor, for federal income tax purposes, the
Securities Administrator is hereby directed to assign a value of zero to the
right of each Holder allocating the purchase price of an initial Offered
Certificateholder between such right and the related Upper Tier Regular
Interest. Thereafter, the Depositor shall provide to the Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under this
Agreement; provided, however, that the Depositor shall not be required to
provide any information regarding the Mortgage Loans that the Servicer is
required to provide to the Securities Administrator pursuant to this Agreement.
The Depositor hereby indemnifies the Securities Administrator for any losses,
liabilities, damages, claims, or expenses of the Securities Administrator
arising from any errors or miscalculations of the Securities Administrator that
result from any failure of the Depositor to provide, pursuant to this paragraph,
accurate information or data to the Securities Administrator on a timely basis.
Neither the Servicer nor Securities Administrator shall (i) permit
the creation of any interests in any Trust REMIC other than the regular and
residual interests set forth in the Preliminary Statement, (ii) receive any
amount representing a fee or other compensation for services (except as
otherwise permitted by this Agreement) or (iii) otherwise knowingly or
intentionally take any action, cause the Trust Fund to take any action or fail
to take (or fail to cause to be taken) any action reasonably within its control
and the scope of duties more specifically set forth herein, that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (A) endanger
the status of any Trust REMIC as a REMIC or (B) result in the imposition of a
tax upon any Trust REMIC or the Trust Fund (including but not limited to the tax
on "prohibited transactions" as defined in Section 860F(a)(2) of the Code and
the tax on contributions to a Trust REMIC set forth in Section 860G(d) of the
Code, or the tax on "net income from foreclosure property") unless the
Securities Administrator receives an Opinion of Counsel (at the expense of the
party seeking to take such action or, if such party fails to pay such
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expense, and the Securities Administrator determines that taking such action is
in the best interest of the Trust Fund and the Certificateholders, at the
expense of the Trust Fund, but in no event at the expense of the Securities
Administrator) to the effect that the contemplated action will not, with respect
to the Trust Fund or any Trust REMIC created hereunder, endanger such status or,
unless the Securities Administrator determines in its sole discretion to
indemnify the Trust Fund against such tax, result in the imposition of such a
tax).
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Pooling Tier REMIC-1 as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on any Trust REMIC pursuant to Sections 23153 and 24874
of the California Revenue and Taxation Code, if not paid as otherwise provided
for herein, the tax shall be paid by (i) the Securities Administrator if such
tax arises out of or results from negligence of the Securities Administrator in
the performance of any of its obligations under this Agreement, (ii) the
Servicer, in the case of any such minimum tax, and otherwise if such tax arises
out of or results from a breach by the Servicer of any of its obligations under
this Agreement, or (iii) in all other cases, or if the Securities Administrator
or the Servicer fails to honor its obligations under the preceding clause (i) or
(ii), any such tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 4.02(a).
Section 8.12 Periodic Filings. (a) The Securities Administrator and
the Servicer shall reasonably cooperate with the Depositor in connection with
the reporting requirements of the Trust under the Exchange Act. The Securities
Administrator shall prepare for execution by the Depositor any Forms 10-D and
10-K and certain Form 8-K's (not to include any 8-K related to the filing of
this Agreement and any amendments thereto), required by the Exchange Act and the
rules and regulations of the Commission thereunder, in order to permit the
timely filing thereof, and the Securities Administrator shall file (via the
Commission's Electronic Data Gathering and Retrieval System, or ▇▇▇▇▇) such
Forms executed by the Depositor.
(b) 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 prepared by the Securities Administrator at the direction of 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 P hereto, within 5 calendar days after the
related Distribution Date, certain parties to this Agreement shall be required
to provide to the Securities Administrator (by email at _____________________
and facsimile at ____________) and the Depositor, to the extent known by such
applicable parties, any Additional Form 10-D Disclosure, in ▇▇▇▇▇-compatible
format, or in such other format as otherwise agreed upon by the Securities
Administrator, the Depositor and such party, the form and substance of the
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Additional Form 10-D Disclosure described on Exhibit P applicable to such party
(and shall include with such Additional Form 10-D Disclosure an Additional
Disclosure Notification in the form attached hereto as Exhibit W), and the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-D 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. The
Securities Administrator shall compile all such information provided to it in a
Form 10-D prepared by it.
After preparing the Form 10-D, the Securities Administrator shall
forward electronically a copy of the Form 10-D to the Depositor for approval and
execution. No later than 2 Business Days prior to the 15th calendar day after
the related Distribution Date, an officer of the Depositor shall sign the Form
10-D and return an electronic or fax copy of such signed Form 10-D (with an
original executed hard copy to follow by overnight mail) to the Securities
Administrator. 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 8.12(f)(ii). Promptly (but not later than 1
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. The signing party at the Depositor can be contacted at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇,
or such other address as to which the Depositor has provided prior written
notice to the Securities Administrator. The Depositor acknowledges that the
performance by the Securities Administrator of its duties under this Section
8.12(b) related to the timely preparation and filing of Form 10-D is contingent
upon the Servicer and the Depositor observing all applicable deadlines in the
performance of their duties under this Section 8.12(b). The Securities
Administrator shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or timely
file such Form 10-D, where such failure results from the Securities
Administrator's inability or failure to receive, on a timely basis, any
information from any party hereto (other than the Securities Administrator of
any Subcontractor utilized by the Securities Administrator) needed to prepare,
arrange for execution or file such Form 10-D, not resulting from its own
negligence, bad faith or willful misconduct.
(c) On or before 90 days 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"), 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. 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, (i)
an annual compliance statement for the Securities Administrator, the Servicer
and each Subservicer engaged by the Servicer and the Securities Administrator,
as described under Section 3.22, (ii)(A) the annual reports on assessment of
compliance with servicing criteria for the Securities Administrator, the
Servicer, each Subservicer engaged by the Servicer and each Servicing Function
Participant utilized by the Servicer or the Securities Administrator, as
described under Section 3.23, and (B) if any such report on assessment of
compliance with servicing criteria described under Section 3.23 identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or such report on assessment of compliance with servicing
criteria described under Section 3.23 is not included as an exhibit to such Form
10-K,
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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 the Securities Administrator, the Servicer, each Subservicer engaged
by the Servicer and each Servicing Function Participant utilized by the Servicer
or the Securities Administrator, as described under Section 3.23, and (B) if any
registered public accounting firm attestation report described under Section
3.23 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 in the form attached hereto as Exhibit L,
with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Sarbanes Certification"), which shall be
signed by the senior officer of the Depositor in charge of securitization. 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
prepared by the Securities Administrator at the direction of 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 Q hereto, no later than March 1 of each year
that the Trust is subject to the Exchange Act reporting requirements, commencing
in 2007, certain parties to this Agreement shall be required to provide to the
Securities Administrator (by email at ________________________ and facsimile at
____________) and the Depositor, to the extent known by such applicable parties,
any Additional Form 10-K Disclosure, in ▇▇▇▇▇-compatible format, or in such
other format as otherwise agreed upon by the Securities Administrator, the
Depositor and such party (and shall include with such Additional Form 10-K
Disclosure an Additional Disclosure Notification in the form attached hereto as
Exhibit W), the form and substance of the Additional Form 10-K Disclosure
described on Exhibit Q applicable to such party and 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. The Securities Administrator
shall compile all such information provided to it in a Form 10-K prepared by it.
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a copy of the Form 10-K to the Depositor for approval and
execution. No later than 5:00 p.m. EST on the 4th Business Day prior to the 10-K
Filing Deadline, an officer of the Depositor shall sign the Form 10-K and return
an electronic or fax copy of such signed Form 10-K (with an original executed
hard copy to follow by overnight mail) to the Securities Administrator. 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 8.12(f)(ii). Promptly (but no later than 1 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. The signing party at
the Depositor can be contacted at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as
to which the Depositor has provided prior written notice to the Securities
Administrator. The Depositor acknowledges that the performance by the Securities
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Administrator of its duties under this Section 8.12(c) related to the timely
preparation and filing of Form 10-K is contingent upon the Servicer (and any
Subservicer or Servicing Function Participant engaged by the Servicer) and the
Depositor observing all applicable deadlines in the performance of their duties
under this Section 8.12(c), Section 8.12(d), Section 3.22 and Section 3.23. The
Securities Administrator shall have no liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare and/or
timely file such Form 10-K, where such failure results from the Securities
Administrator's inability or failure to receive, on a timely basis, any
information from any party hereto (other than the Securities Administrator or
any Subcontractor utilized by the Securities Administrator) needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
(d) In connection with the execution of a Sarbanes Certification,
the Securities Administrator shall sign a certification (in the form attached
hereto as Exhibit M, with such changes as may be necessary or appropriate as a
result of changes promulgated by the Commission) for the benefit of the
Depositor and its officers, directors and Affiliates, and the Servicer shall
sign a certification solely with respect to the Servicer (in the form attached
hereto as Exhibit N, with such changes as may be necessary or appropriate as a
result of changes promulgated by the Commission) for the benefit of the
Depositor, the Securities Administrator and their respective officers, directors
and Affiliates. Each such certification shall be delivered to the Depositor no
later than March 10th of each year (or if such day is not a Business Day, the
immediately preceding Business Day) and the Depositor shall deliver the Sarbanes
Certification no later than the time set forth for the delivery to the
Securities Administrator of the signed Form 10-K pursuant to Section 8.12(c) for
such year. In the event that prior to the filing date of the Form 10-K in March
of each year, the Securities Administrator or the Servicer has actual knowledge
of information material to the Sarbanes Certification, that party shall promptly
notify the Depositor and each of the other parties signing the certifications.
In addition, (i) the Securities Administrator shall indemnify and hold harmless
the Depositor and the Sponsor and their officers, directors, employees, agents
and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon any breach of the
Securities Administrator's obligations under this Section 8.12(d) or the
Securities Administrator's material misstatement, omission, negligence, bad
faith or willful misconduct in connection therewith, and (ii) the Servicer shall
indemnify and hold harmless the Depositor, the Securities Administrator and
their respective officers, directors, employees, agents and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon any breach of the Servicer's obligations under this
Section 8.12(d) or any material misstatement, omission, negligence, bad faith or
willful misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless any indemnified party, then (i) the Securities Administrator agrees in
connection with a breach of the Securities Administrator's obligations under
this Section 8.12(d) or the Securities Administrator's material misstatement,
omission, negligence, bad faith or willful misconduct in connection therewith
that it shall contribute to the amount paid or payable by the Depositor and the
Sponsor as a result of the losses, claims, damages or liabilities of the
Depositor and the Sponsor in such proportion as is appropriate to reflect the
relative fault of the Depositor and the Sponsor on the one hand and the
Securities Administrator on the other and (ii) the Servicer
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agrees that it shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities of
such indemnified party in such proportion as is appropriate to reflect the
relative fault of such indemnified party, on the one hand, and the Servicer, on
the other hand, in connection with a breach of the Servicer's obligations under
this Section 8.12(d) or any material misstatement or omission, negligence, bad
faith or willful misconduct of the Servicer in connection therewith.
(e) Upon any filing with the Commission, the Securities
Administrator shall promptly make available via the Securities Administrator's
internet website to the Depositor a copy of each such executed report, statement
or information.
(f) (i) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. On or
prior to January 30 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 with respect to the Trust, with a
copy to the Depositor. At any time after the filing of a Form 15 Suspension
Notification, if the number of Holders of the Offered Certificates of record
exceeds the number set forth in Section 15(d) of the Exchange Act or the
regulations promulgated pursuant thereto which would cause the Trust to again
become subject to the reporting requirements of the Exchange Act, the Securities
Administrator shall recommence preparing and filing reports on Form 10-K, 10-D
and 8-K as required pursuant to this Section 8.12 and the parties hereto shall
again have the obligations set forth in this Section 8.12.
(ii) 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 pursuant to 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,
the Securities Administrator will immediately notify the Depositor and the
Servicer. In the case of Form 10-D and 10-K, the Depositor and Securities
Administrator will thereupon 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 disclosure information required to be included on Form
8-K and, upon the approval and direction of the Depositor, include such
disclosure information on the next succeeding Form 10-D. In the event that
any previously filed Form 8-K, 10-D or 10-K needs to be amended, the party
to this Agreement deciding that an amendment to such Form 8-K, 10-D or
10-K is required will notify the Depositor, the Securities Administrator
and the Servicer and such parties will cooperate to prepare any necessary
Form 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 an officer of the Depositor. The
Depositor acknowledges that the performance by the Securities
Administrator of its duties under this Section 8.12(f) related to the
timely preparation and filing of Form 15, a Form 12b-25 or any amendment
to Form 8-K, 10-D or 10-K is contingent upon the Servicer and the
Depositor observing all applicable deadlines in the performance of their
duties under this Section 8.12 and Sections 3.22 and 3.23. The Securities
Administrator shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or
timely file any such
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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
party hereto (other than the Securities Administrator or any Subcontractor
utilized by the Securities Administrator) 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.
(g) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and
also 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 ("Form
8-K Disclosure Information") shall be prepared by the Securities Administrator
at the direction of 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 R hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business on the 2nd Business Day after the occurrence of a Reportable Event
certain parties to this Agreement shall be required to provide to the Depositor
and to the Securities Administrator (by email at ________________________ and
facsimile at ____________), to the extent known by such applicable parties, any
Form 8-K Disclosure Information, in ▇▇▇▇▇-compatible format, or in such other
format as otherwise agreed upon by the Securities Administrator, the Depositor
and such party, the form and substance of the Form 8-K Disclosure Information
described on Exhibit R applicable to such party (and shall include with such
Additional Form 8-K Disclosure, an Additional Disclosure Notification in the
form attached hereto as Exhibit W), and 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 on Form 8-K. 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. The Securities Administrator shall
compile all such information provided to it in a Form 8-K prepared by it.
After preparing the Form 8-K, the Securities Administrator shall no
later than 12:00 noon on the 3rd Business Day after the Reportable Event but in
no case without having had notice for 24 hours forward electronically a draft
copy of the Form 8-K to the Depositor for review. No later than 12:00 noon on
the 4th Business Day after the Reportable Event, an officer of the Depositor
shall sign the Form 8-K and return an electronic or fax copy of such signed Form
8-K (with an original executed hard copy to follow by overnight mail) to the
Securities Administrator. 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 8.12(f)(ii). Promptly 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 signing party at
the Depositor can be contacted at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
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Attention: General Counsel, Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇, or such other address as
to which the Depositor has provided prior written notice to the Securities
Administrator. The Depositor and Servicer acknowledge that the performance by
the Securities Administrator of its duties under this Section 8.12(g) related to
the timely preparation and filing of Form 8-K is contingent upon the Servicer
and the Depositor observing all applicable deadlines in the performance of their
duties under this Section 8.12(g). The Securities Administrator shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare 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 party hereto
(other than the Securities Administrator or any Subcontractor utilized by the
Securities Administrator) needed to prepare, arrange for execution or file such
Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(h) The Securities Administrator shall have no liability for any
loss, expense, damage or claim arising out of or resulting from (i) the accuracy
or inaccuracy of any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information (excluding any information therein
provided by the Securities Administrator or any Subcontractor utilized by the
Securities Administrator) provided to the Securities Administrator in connection
with the preparation of Forms 10-D, 10-K and 8-K pursuant to this Section 8.12,
or (ii) the failure of the Depositor to approve for filing any Forms 10-D, 10-K
and 8-K required to be prepared by the Securities Administrator pursuant to this
Section 8.12, in either case, not resulting from the Securities Administrator's
own negligence, bad faith or misconduct.
(i) With respect to any notice required to be delivered by the
Securities Administrator to the Depositor pursuant to Section 8.12 of this
Agreement, the Securities Administrator may deliver such notice, notwithstanding
any contrary provision in Section 11.05, via facsimile to ▇▇▇-▇▇▇-▇▇▇▇ or
telephonically by calling the General Counsel at 212-412-4000.
Section 8.13 Tax Classification of the Excess Reserve Fund Account,
the Swap Account, the Interest Rate Swap Agreement and the Cap Agreements. For
federal income tax purposes, the Securities Administrator shall treat the Excess
Reserve Fund Account, the Swap Account, the Cap Agreements and the Interest Rate
Swap Agreement as beneficially owned by the holders of the Class X Certificates
and shall treat such portion of the Trust Fund as a grantor trust, within the
meaning of subpart E, Part I of subchapter J of the Code. The Securities
Administrator shall treat the rights that each Class of LIBOR Certificates has
to receive payments of Basis Risk Carry Forward Amounts from the Excess Reserve
Fund Account and, to the extent not paid from the Excess Reserve Fund Account
from the Swap Account (including, without duplication, Upper Tier Carry Forward
Amounts), as rights to receive payments under an interest rate cap contract
written by the Class X Certificateholders in favor of each such Class and
beneficially owned by each such Class through the grantor trust. Accordingly,
each Class of Certificates (excluding the Class X, Class P and Class R
Certificates) will be comprised of two components - an Upper Tier REMIC Regular
Interest and an interest in an interest rate cap contract, and the Class X
Certificates will be comprised of five components - two Upper Tier REMIC Regular
Interests (the Class X Interest and the Class IO Interest), the Cap Agreements,
an interest in the Excess Reserve Fund Account, subject to obligation to pay
Basis Risk Carry Forward Amounts and ownership of the Swap Account and the
Interest Rate Swap Agreement, subject to the obligation to pay Basis Risk Carry
Forward Amounts (including,
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without duplication, Upper Tier Carry Forward Amounts). The Securities
Administrator shall allocate the issue price for a Class of Certificates among
the respective components for purposes of determining the issue price of each
Upper Tier REMIC Regular Interest component based on information received from
the Depositor.
Holders of LIBOR Certificates shall also be treated as having agreed
to pay, on each Distribution Date, to the Holders of the Class X Certificates an
aggregate amount equal to the excess, if any, of (i) Net Swap Payments and Swap
Termination Payments (other than Defaulted Swap Termination Payments) over (ii)
the sum of amounts payable on the Class X Interest available for such payments
and amounts payable on the Class IO Interest (such excess, a "Class IO
Shortfall"), first from interest and then from principal distributable on the
LIBOR Certificates. A Class IO Shortfall payable from interest collections shall
be allocated pro rata among such LIBOR Certificates based on the amount of
interest otherwise payable to such Class of LIBOR Certificates, and a Class IO
Shortfall payable from principal collections shall be allocated in reverse
sequential order beginning with the most subordinate Class of LIBOR Certificates
then Outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Upper-Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class X Certificates
through the Swap Account.
ARTICLE IX
CONCERNING THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non-conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
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
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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 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 and conforming to the
requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for any error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Servicer or the Trustee.
The Securities Administrator shall be permitted to utilize one or
more Subcontractors for the performance of certain of its obligations under this
Agreement, provided that the Securities Administrator complies with Section
3.02(e) as if the Securities Administrator were a "Servicer" pursuant to that
Section. The Securities Administrator shall indemnify the Depositor, the Sponsor
and any director, officer, employee or agent of the Depositor or the Sponsor and
hold them harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
in any way related to the failure of the Securities Administrator to perform any
of its obligations under Section 3.22 or Section 3.23, including without
limitation any failure by the Securities Administrator to identify pursuant to
Section 3.02(e) any Subcontractor that is a Servicing Function Party. This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Securities Administrator.
Section 9.02 Certain Matters Affecting the Securities Administrator.
Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
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believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the 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 so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; 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 the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors, provided that the Servicer shall
have no liability for disclosure required by this Agreement;
(v) the Securities Administrator 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 and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such
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Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no 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 Securities Administrator
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 the interests of the Trustee, the Securities
Administrator 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 Securities Administrator shall be entitled to be reimbursed therefor
out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision or maintenance of 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 other than from funds available in the
Distribution Account.
Section 9.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor or the Purchaser, as the case may be,
and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document other than with respect to the Securities
Administrator's execution and authentication of the Certificates. The Securities
Administrator shall not be accountable for the use or application by the
Depositor or the Servicer of any funds paid to the Depositor or the Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Depositor or the Servicer.
The Securities Administrator executes the Certificates not in its
individual capacity but solely as Securities Administrator of the Trust Fund
created by this Agreement, in the exercise of the powers and authority conferred
upon and vested in it by this Agreement. Each of the undertakings and agreements
made on the part of the Securities Administrator on behalf of the Trust Fund in
the Certificates is made and intended not as a personal undertaking or agreement
by the Securities Administrator but is made and intended for the purpose of
binding only the Trust Fund.
Section 9.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
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Section 9.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account held by the Securities Administrator. The
Securities Administrator and any director, officer, employee, agent or "control
person" within the meaning of the Securities Act of 1933, as amended, and the
Securities Exchange of 1934, as amended ("Control Person"), of the Securities
Administrator shall be indemnified by the Trust and held harmless against any
loss, liability or expense (including reasonable attorney's fees) (i) incurred
in connection with any claim or legal action relating to (a) this Agreement, (b)
the Mortgage Loans or (c) the Certificates, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Securities Administrator's duties hereunder, (ii)
incurred in connection with the performance of any of the Securities
Administrator's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Securities Administrator's duties hereunder or (iii)
incurred by reason of any action of the Securities Administrator taken at the
direction of the Certificateholders, provided that any such loss, liability or
expense constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Securities Administrator hereunder. Without limiting the foregoing, and except
for any such expense, disbursement or advance as may arise from the Securities
Administrator's negligence, bad faith or willful misconduct, or which would not
be an "unanticipated expense" within the meaning of the second preceding
sentence, the Securities Administrator shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph from
amounts on deposit from time to time in the Distribution Account. The Securities
Administrator 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.
Section 9.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal
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banking and trust relationships with the Depositor and its affiliates or the
Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator functions are operated through an institutional trust
department of the Securities Administrator, (ii) must be authorized to exercise
corporate trust powers under the laws of its jurisdiction of organization, and
(iii) must be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency and
rates such successor, or the equivalent rating by S&P or ▇▇▇▇▇'▇. If no
successor Securities Administrator shall have been appointed and shall have
accepted appointment within 60 days after the Securities Administrator ceases to
be the Securities Administrator pursuant to Section 10.07, then the Trustee may
(but shall not be obligated to) become the successor Securities Administrator.
The Depositor shall appoint a successor to the Securities Administrator in
accordance with Section 10.07. The Trustee shall notify the Rating Agencies of
any change of Securities Administrator.
Section 9.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
9.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 9.08 meeting the
qualifications set forth in Section 9.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 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.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 9.06 hereof and shall fail
to resign after written request thereto by the Depositor, or if at any time the
Securities Administrator shall become incapable of acting, or shall be adjudged
as 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, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Servicer and one copy to the successor Securities
Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the
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Securities Administrator shall be given to each Rating Agency by the successor
Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 9.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 9.08
hereof.
Section 9.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 9.07 hereof shall execute, acknowledge and deliver to the Depositor and
to the predecessor Securities Administrator and the Trustee 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 herein. The Depositor, the Trustee, the Servicer and the
predecessor Securities Administrator shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor Securities Administrator all
such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 9.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 9.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 9.08, the Depositor shall mail notice of
the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 9.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
9.06 hereof, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 9.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or
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subcontract with, or authorize or appoint any other Person to perform any of the
duties, covenants or obligations to be performed by the Securities
Administrator; provided, however, that the Securities Administrator shall have
the right with the prior written consent of the Depositor (which shall not be
unreasonably withheld or delayed), and upon delivery to the Trustee and the
Depositor of a letter from each Rating Agency to the effect that such action
shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Securities Administrator
hereunder. Notice of such permitted assignment shall be given promptly by the
Securities Administrator to the Depositor and the Trustee. If, pursuant to any
provision hereof, the duties of the Securities Administrator are transferred to
a successor securities administrator, the entire compensation payable to the
Securities Administrator pursuant hereto shall thereafter be payable to such
successor securities administrator but in no event shall the fee payable to the
successor Securities Administrator exceed that payable to the predecessor
Securities Administrator.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Servicer, the Securities Administrator and the Trustee
created hereby with respect to the Trust Fund shall terminate upon the earlier
of (a) if the Class X Certificates are not 100% owned, either directly or
indirectly, by the Sponsor or any of its Affiliates, the purchase, on or after
the Optional Termination Date, by the Majority Class X Certificateholders in the
aggregate of all Mortgage Loans (and REO Properties) at the price (the
"Termination Price") equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan (other than in respect of REO Property) plus
accrued and unpaid interest thereon at the applicable Mortgage Rate, (ii) the
lesser of (x) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers selected by the
Majority Class X Certificateholder at its expense and (y) the unpaid principal
balance of each Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Mortgage Rate, (iii) all
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, Servicing Advances and indemnification payments
payable to the Servicer, (iv) any Swap Termination Payment, other than a
Defaulted Swap Termination Payment, owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement, and (v) any unreimbursed indemnification payments
payable to the Securities Administrator or the Trustee under this Agreement and
(b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) 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;
provided that in the case of clause (a) above, if the Depositor or any of its
Affiliates is a Class X Certificateholder exercising this option, it may only do
so with at least one other unaffiliated person that holds at least a 10%
Percentage Interest in the Class X Certificates. In no event shall the trusts
created hereby continue beyond 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.
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Notwithstanding anything to the contrary contained herein, no such
purchase by the Majority Class X Certificateholder shall be permitted unless (i)
after distribution of the proceeds thereof to the Certificateholders (other than
the Holders of the Class X, Class P and Residual Certificates) pursuant to
Section 9.02, the distribution of the remaining proceeds to the Class X and
Class P Certificates is sufficient to pay the outstanding principal amount of
and accrued and unpaid interest on the NIM Securities, to the extent the NIM
Securities are then outstanding, or (ii) prior to such purchase, the Majority
Class X Certificateholder remits to the Securities Administrator an amount that,
together with such remaining proceeds, will be sufficient to pay the outstanding
principal amount of, and accrued and unpaid interest on, the NIM Securities, to
the extent the NIM Securities are then outstanding.
Section 10.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer determines that there are no Outstanding Mortgage
Loans and no other funds or assets in the Trust Fund other than the funds in the
Collection Account, the Servicer shall direct the Securities Administrator
promptly to send a Notice of Final Distribution to each Certificateholder and
the Swap Provider. If the Majority Class X Certificateholder elects to exercise
its option to purchase the Mortgage Loans pursuant to clause (a) of Section
9.01, at least 20 days prior to the date the Notice of Final Distribution is to
be mailed to the affected Certificateholders, the Servicer, upon receipt of
notice from the Majority Class X Certificateholder indicating its intent to
exercise such purchase option, shall notify the Depositor and the Securities
Administrator of (a) the date on which the Majority Class X Certificateholder
intends to exercise such purchase option and (b) the Termination Price.
A Notice of Final Distribution, 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 ___
day and not later than the ___ day of the month of such final distribution. Any
such Notice of Final Distribution shall specify (a) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Securities Administrator will give such Notice of Final
Distribution to each Rating Agency at the time such Notice of Final Distribution
is given to Certificateholders.
In the event such Notice of Final Distribution is given, the
Servicer shall cause all funds in the Collection Account to be remitted to the
Securities Administrator for deposit in the Distribution Account on the Business
Day prior to the applicable Distribution Date in an amount equal to the final
distribution in respect of the Certificates. Upon such final deposit with
respect to the Trust Fund and the receipt by the Custodian of a Request for
Release therefor, the Custodian shall promptly release to the Majority Class X
Certificateholder the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all
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amounts due to the Servicer, the Depositor, the Trustee and the Securities
Administrator hereunder), in each case on the final Distribution Date and in the
order set forth in Section 4.02, in proportion to their respective Percentage
Interests, with respect to Certificateholders of the same Class, up to an amount
equal to (i) as to each Class of Regular Certificates (except the Class X
Certificates), the Certificate Balance thereof plus for each such Class and the
Class X Certificates accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02 and (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the Notice of Final Distribution, 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 such second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 10.03 Additional Termination Requirements. In the event the
Majority Class X Certificateholder exercises its purchase option with respect to
the Mortgage Loans as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Securities Administrator and the Trustee have been supplied with an Opinion of
Counsel, at the expense of the Majority Class X Certificateholder, to the effect
that the failure to comply with the requirements of this Section 9.03 will not
(i) result in the imposition of taxes on "prohibited transactions" on any Trust
REMIC as defined in Section 860F of the Code or (ii) cause any Trust REMIC to
fail to qualify as a REMIC at any time that any Certificates are Outstanding:
(a) The Securities Administrator shall sell all of the assets of the
Trust Fund to the Majority Class X Certificateholder, and, within 90 days of
such sale, shall distribute to the Certificateholders the proceeds of such sale
in complete liquidation of each of the Trust REMICs; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the 90-day
liquidation period for each such REMIC was the date on which the Trustee sold
the assets of the Trust Fund to the Majority Class X Certificateholder.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Responsible Party, the Servicer, the Securities
Administrator and the Trustee, without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor or the Servicer, (iv) to add any other provisions with respect to
matters or questions arising hereunder or (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement; provided,
that any action pursuant to clause (iv) or (v) above shall not, as evidenced by
an Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided, further, that any such action
pursuant to clause (iv) or (v) above shall not be deemed to adversely affect in
any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. The Trustee, the
Depositor, the Responsible Party and the Securities Administrator also may at
any time and from time to time amend this Agreement, but 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 each Trust 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 Securities
Administrator and the Trustee have 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 Securities Administrator, the Trustee or the
Trust Fund, to the effect that such action is necessary or helpful to, as
applicable, (i) maintain such qualification, (ii) avoid or minimize the risk of
the imposition of such a tax or (iii) comply with any such requirements of the
Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicer, the Responsible Party, the Securities Administrator and
the Trustee, but with the consent of the Holders of Certificates evidencing
Percentage Interests aggregating not less than 66(2)/3% of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in clause (i), without the consent of the
Holders of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 66(2)/3% or (iii) reduce the aforesaid
percentages of Certificates the
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Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then Outstanding.
Notwithstanding any contrary provision of this Agreement, neither
the Trustee nor the Securities Administrator shall consent to any amendment to
this Agreement unless (i) it shall have first received an Opinion of Counsel,
which opinion shall not be an expense of the Securities Administrator, the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any Trust REMIC or the Certificateholders or cause any
such REMIC to fail to qualify as a REMIC or the grantor trust to fail to qualify
as a grantor trust at any time that any Certificates are Outstanding and (ii)
the party seeking such amendment shall have provided written notice to the
Rating Agencies (with a copy of such notice to the Securities Administrator and
the Trustee) of such amendment, stating the provisions of the Agreement to be
amended.
Notwithstanding the foregoing provisions of this Section 11.01, with
respect to any amendment that significantly modifies the permitted activities of
the Securities Administrator, the Trustee or the Servicer, any Certificate
beneficially owned by the Depositor shall be deemed not to be Outstanding (and
shall not be considered when determining the percentage of Certificateholders
consenting or when calculating the total number of Certificates entitled to
consent) for purposes of determining if the requisite consents of
Certificateholders under this Section 11.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Securities Administrator shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Securities Administrator may prescribe.
Nothing in this Agreement shall require the Securities Administrator
or the Trustee to enter into an amendment without receiving an Opinion of
Counsel (which Opinion shall not be an expense of the Securities Administrator,
the Trustee or the Trust Fund), satisfactory to the Securities Administrator and
the Trustee that (i) such amendment is permitted and is not prohibited by this
Agreement and that all requirements for amending this Agreement have been
complied with and (ii) either (A) the amendment does not adversely affect in any
material respect the interests of any Certificateholder or (B) the conclusion
set forth in the immediately preceding clause (A) is not required to be reached
pursuant to this Section 11.01.
Notwithstanding the foregoing, any amendment to this Agreement shall
require the prior written consent of the Swap Provider if such amendment
materially and adversely affects the rights or interests of the Swap Provider.
Section 11.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties
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or other comparable jurisdictions in which any or all of the Mortgaged
Properties are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Servicer at the direction and
expense of the Depositor, but only upon receipt of an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such assets,
then (i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the 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 the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 11.05 Notices. (a) The Securities Administrator shall use
its best efforts to promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer, the Securities
Administrator or the Trustee and the appointment of any successor;
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4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
5. The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03; and
2. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
(c) All directions, demands, consents and notices hereunder shall be
in writing and shall be deemed to have been duly given when delivered to: (a) in
the case of the Depositor, BCAP LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: _______________, Facsimile: _______________, or such other address as
the Depositor may hereafter furnish to the Servicer, the Securities
Administrator and the Trustee; (b) in the case of the Servicer,
___________________________ (or, for purposes of Section 7.01, by facsimile at
_______________ and by telephone at _______________), or such other address as
may be hereafter furnished to the Depositor, the Securities Administrator and
the Trustee by the Servicer in writing; (c) in the case of the Securities
Administrator to ___________________________ Attention: _______________,
Facsimile: _______________, with a copy to ___________________________,
Attention: _______________, and a separate copy to ___________________________,
Attention: _______________, or in each case such other address as the Securities
Administrator may hereafter furnish to the Depositor, the Servicer and Trustee
in writing; (d) in the case of the Trustee, to the Corporate Trust Office of the
Trustee; and (e) in the case of each of the Rating Agencies, the address
specified therefor in the definition corresponding to the name of such Rating
Agency. Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 6.02, this Agreement may not be
assigned by the Servicer without the prior written consent of the Trustee, the
Securities Administrator and Depositor; provided, however, that the Servicer may
pledge its interest in any reimbursements for P&I Advances or Servicing Advances
hereunder.
Section 11.08 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or
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to take any action or commence any proceeding in any court for a petition or
winding up of the Trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 11.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.09 Inspection and Audit Rights. The Servicer agrees that,
on reasonable prior notice, it will permit any representative of the Depositor,
the Securities Administrator or the Trustee during the Servicer's normal
business hours, to examine all the books of account, records, reports and other
papers of the Servicer relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor, the Securities Administrator or
the Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Servicer hereby authorizes said accountants to
discuss with such representative such affairs, finances and accounts), all at
such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense of the Servicer incident to the exercise by the Depositor,
the Securities Administrator or the Trustee of any right under this Section
11.09 shall be borne by the Servicer.
Section 11.10 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund,
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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 11.11 Assignment; Sales; Advance Facilities. Notwithstanding
anything to the contrary contained herein, except as provided in Section 6.02,
this Agreement may not be assigned by the Servicer without the prior written
consent of the Trustee and Depositor; provided, however, the Servicer is hereby
authorized to enter into an Advance Facility under which (1) the Servicer sells,
assigns or pledges to an Advancing Person the Servicer's rights under this
Agreement to be reimbursed for any P&I Advances or Servicing Advances ("Advance
Reimbursement Amounts") and/or (2) an Advancing Person agrees to fund some or
all P&I Advances or Servicing Advances required to be made by the Servicer
pursuant to this Agreement. No consent of the Trustee, Certificateholders or any
other party is required before the Servicer may enter into an Advance Facility.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund P&I Advances and/or Servicing Advances on the Servicer's
behalf, the Servicer shall remain obligated pursuant to this Agreement to make
P&I Advances and Servicing Advances pursuant to and as required by this
Agreement, and shall not be relieved of such obligations by virtue of such
Advance Facility.
Advance Reimbursement Amounts shall consist solely of amounts in
respect of P&I Advances and/or Servicing Advances made with respect to the
Mortgage Loans for which the Servicer would be permitted to reimburse itself in
accordance with this Agreement, assuming the Servicer had made the related P&I
Advance(s) and/or Servicing Advance(s). The Trustee shall not have any duty or
liability with respect to the calculation of any Advance Reimbursement Amount.
The Trustee shall also not have any responsibility to track or monitor the
administration of the Advance Facility or the payment of Advance Reimbursement
Amounts to the related Advancing Person.
The Servicer shall maintain and provide to any successor Servicer
and (upon request) the Securities Administrator a detailed accounting on a
loan-by-loan basis as to amounts advanced by, pledged or assigned to, and
reimbursed to any Advancing Person. The successor Servicer shall be entitled to
rely on any such information provided by the predecessor Servicer, and the
successor Servicer shall not be liable for any errors in such information.
An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
Advance Reimbursement Amounts allocated to reimburse P&I Advances or
Servicing Advances made with respect to any particular Mortgage Loan shall be
allocated to the reimbursement of the ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances or Servicing
Advances (as the case may be) made with respect to such Mortgage Loan on a
"first-in, first out" ("FIFO") basis, such that the Advance Reimbursement
Amounts shall be applied to reimburse the P&I Advance or Servicing Advance (as
the case may be) for such Mortgage Loan that was disbursed earliest in time
first, and to reimburse the P&I Advance or Servicing Advance (as the case may
be) for such Mortgage Loan that was disbursed latest in time last. Liquidation
Proceeds and Subsequent Recoveries
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with respect to a Mortgage Loan shall be applied to reimburse Servicing Advances
outstanding with respect to such Mortgage Loan before being applied to reimburse
P&I Advances outstanding with respect to such Mortgage Loan. The Servicer shall
provide to the related Advancing Person, the Advance Facility trustee (or to any
designee of either) loan-by-loan information with respect to each Advance
Reimbursement Amount remitted to such Advancing Person, Advance Facility trustee
or designee, to enable the Advancing Person or Advance Facility trustee to make
the FIFO allocation of each such Advance Reimbursement Amount with respect to
each Mortgage Loan. The Servicer shall remain entitled to be reimbursed by the
Advancing Person or Advance Facility trustee for all P&I Advances and Servicing
Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person. The Servicer shall indemnify the Trustee and the Trust Fund for any
loss, liability or damage resulting from any claim by the related Advancing
Person.
Any amendment to this Section 11.11 or to any other provision of
this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 11.11, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee and the Servicer without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement
upon receipt by the Trustee of an Opinion of Counsel that such amendment has no
material adverse effect on the Certificateholders or written confirmation from
the Rating Agencies that such amendment will not adversely affect the ratings on
the Certificates. All reasonable costs and expenses (including attorney's fees)
of each party hereto of any such amendment shall be borne by the Servicer.
Prior to entering into an Advance Facility, the Servicer shall
notify the Advancing Person in writing that (1) the Trustee and the Trust are
not obligated or liable to repay any Advances financed by the Advancing Person
and (2) the Trustee shall not have any responsibility to track or monitor the
administration of the Advance Facility between the Servicer and the Advancing
Person.
Section 11.12 Rule of Construction. Article and section headings are
for the convenience of the reader and shall not be considered in interpreting
this Pooling and Servicing Agreement or the intent of the parties hereto.
Section 11.13 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE
LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 11.14 Rights of the Swap Provider. The Swap 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 its rights under this
Agreement.
Section 11.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may
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change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and, to the extent
practicable from a timing and information systems perspective and to the extent
the Depositor will pay any increased costs of the Trustee caused by such
request, agree to comply with all reasonable requests made by the Depositor in
good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with the Trust, the
Servicer, the Securities Administrator and the Trustee shall, to the extent
practicable from a timing and information systems perspective and to the extent
the Depositor will pay any increased costs of the Trustee and the Securities
Administrator caused by such request, cooperate fully with the Depositor to
deliver to the Depositor (including its assignees or designees), any and all
statements, reports, certifications, records and any other information available
to such party and reasonably necessary in the good faith determination of the
Depositor to permit the Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Servicer, the Securities
Administrator and the Trustee, as applicable, reasonably believed by the
Depositor to be necessary in order to effect such compliance.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Depositor, the Securities Administrator, the
Custodian, the Trustee, the Loan Performance Advisor, the Responsible Party and
the Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
BCAP LLC
By:
----------------------------------------
Name:
Title:
------------------------------------
solely as Trustee and not in its
individual capacity
By:
----------------------------------------
Name:
Title:
------------------------------------
only with respect to Article II of
the Agreement
By:
----------------------------------------
Name:
Title:
--------------------------------------------
By:
----------------------------------------
Name:
Title:
--------------------------------------------
as Servicer
By:
----------------------------------------
Name:
Title:
--------------------------------------------
as Securities Administrator
By:
----------------------------------------
Name:
Title:
--------------------------------------------
as Custodian
By:
----------------------------------------
Name:
Title:
SCHEDULE I
Mortgage Loan Schedule
SCH. I-1
SCHEDULE II
Mortgage Pass-Through Certificates,
Series 200_-___
Representations and Warranties of ___________
___________ hereby makes the representations and warranties set
forth in this Schedule II to the Depositor and the Trustee, as of the Closing
Date, or if so specified herein, as of the Cut-off Date.
(A) ___________ is duly organized and is validly existing and
in good standing under the laws of its jurisdiction of incorporation
and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by
___________ in any state in which a Mortgaged Property is located or
is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to perform
any of its obligations under this Agreement in accordance with the
terms thereof.
(B) ___________ has the full power and authority to execute,
deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized
by all necessary action on the part of ___________ the execution,
delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by
the other parties thereto, constitutes a legal, valid and binding
obligation of ___________, enforceable against ___________ in
accordance with its terms, except that (i) the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights
generally and (ii) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(C) The execution and delivery of this Agreement by
___________, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance
with the terms thereof are in the ordinary course of business of
___________ and will not (i) result in a material breach of any term
or provision of the articles of incorporation or by laws of
___________, (ii) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material
default under, the terms of any other material agreement or
instrument to which ___________ is a party or by which it may be
bound, or (iii) constitute a material violation of any statute,
order or regulation applicable to ___________ of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over ___________; and ___________ is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute,
SCH. II-1
order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach
or violation may materially impair ___________'s ability to perform
or meet any of its obligations under this Agreement.
(D) No litigation is pending or threatened against ___________
that would materially and adversely affect the execution, delivery
or enforceability of this Agreement or the ability of ___________ to
perform any of its obligations under this Agreement in accordance
with the terms thereof. For purposes of the foregoing, ___________
does not regard any actions, proceedings or investigations
"threatened" unless the potential litigants or governmental
authority has manifested to a member of the ___________ having
responsibility for litigation matters involving the corporate trust
activities of ___________ its present intention to initiate such
proceedings.
(E) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by ___________ of, or compliance by
___________ with, this Agreement or the consummation of the
transactions contemplated thereby, or if any such consent, approval,
authorization or order is required, ___________ has obtained the
same.
SCH. II-2
SCHEDULE III
Mortgage Pass-Through Certificates,
Series 200_-___
Representations and Warranties of the Responsible Party as to the Mortgage Loans
--------------------------------------------------------------------------------
[Mortgage Loan Representations and Warranties]
SCH. III-1
SCHEDULE IV
Mortgage Pass-Through Certificates,
Series 200_-___
Representations and Warranties as to the Responsible Party
----------------------------------------------------------
_________ hereby makes the representations and warranties set forth
in this Schedule IV to the Depositor, the Servicer and the Trustee, as of
________, 200_ (the "Securitization Closing Date") (unless otherwise expressly
indicated). Capitalized terms used but not otherwise defined in this Schedule IV
shall have the meanings ascribed thereto in the _____ Purchase Agreement.
(a) Due Organization and Authority. _____ is a corporation, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation or formation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in the states where the Mortgaged Property is located if the laws
of such state require licensing or qualification in order to conduct
business of the type conducted by _____. _____ has corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by _____ and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
has been duly executed and delivered and constitutes the valid, legal,
binding and enforceable obligation of _____, except as enforceability may
be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors and (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by _____ to make this Agreement valid and
binding upon _____ in accordance with its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from
any court, governmental agency or body, or federal or state regulatory
authority having jurisdiction over _____ is required or, if required, such
consent, approval, authorization or order has been or will, prior to the
related Closing Date, be obtained;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of _____, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by _____ pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in
effect in any applicable jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by _____,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement, will
SCH. IV-1
conflict with or result in a breach of any of the terms, conditions or
provisions of _____'s charter, by-laws or other organizational documents
or any legal restriction or any agreement or instrument to which _____ is
now a party or by which it is bound, or constitute a default or result in
an acceleration under any of the foregoing, or result in the violation of
any law, rule, regulation, order, judgment or decree to which _____ or its
property is subject, or result in the creation or imposition of any lien,
charge or encumbrance that would have an adverse effect upon any of its
properties pursuant to the terms of any mortgage, contract, deed of trust
or other instrument, or impair the ability of the Purchaser to realize on
the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance
benefits accruing pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to _____'s knowledge, threatened against _____,
before any court, administrative agency or other tribunal asserting the
invalidity of this Agreement, seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or which, either in any
one instance or in the aggregate, would likely result in any material
adverse change in the business, operations, financial condition,
properties or assets of _____, or in any material impairment of the right
or ability of _____ to carry on its business substantially as now
conducted, or in any material liability on the part of _____, or which
would draw into question the validity of this Agreement or the Mortgage
Loans or of any action taken or to be taken in connection with the
obligations of _____ contemplated herein, or which would be likely to
impair materially the ability of _____ to perform under the terms of this
Agreement;
(f) Ability to Perform; Solvency. _____ does not believe, nor does
it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. _____ is solvent and the sale
of the Mortgage Loans will not cause _____ to become insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to hinder, delay
or defraud any of Seller's creditors;
(g) Seller's Origination. _____'s decision to originate any mortgage
loan or to deny any mortgage loan application is an independent decision
based upon the Underwriting Guidelines, and is in no way made as a result
of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money Laundering Laws. _____ has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money
Laundering Laws"); _____ has established an anti-money laundering
compliance program to the extent required by the Anti-Money Laundering
Laws, has conducted the requisite due diligence in connection with the
origination of each Mortgage Loan to the extent required by and for
purposes of the Anti-Money Laundering Laws, including with respect to the
legitimacy of the applicable Mortgagor and the origin of the assets used
by the said Mortgagor to purchase the property in question, and maintains,
and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
SCH. IV-2
(i) Financial Statements. _____ has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any
later quarter ended more than 60 days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent
results of operations and changes in financial position for each of such
periods and the financial position at the end of each such period of _____
and its subsidiaries and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as set forth in the notes thereto. In addition, _____ has
delivered information as to its loan gain and loss experience in respect
of foreclosures and its loan delinquency experience for the immediately
preceding three-year period, in each case with respect to mortgage loans
owned by it and such mortgage loans serviced for others during such
period, and all such information so delivered shall be true and correct in
all material respects. There has been no change in the business,
operations, financial condition, properties or assets of _____ since the
date of _____'s financial statements that would have a material adverse
effect on its ability to perform its obligations under this Agreement.
_____ has completed any forms requested by the Purchaser in a timely
manner and in accordance with the provided instructions;
(j) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in _____'s portfolio at
the related Closing Date as to which the representations and warranties
set forth in the _____ Purchase Agreement could be made and such selection
was not made in a manner so as to affect adversely the interests of the
Purchaser;
(k) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered
with respect to each Mortgage Loan pursuant to the Custodial Agreement,
shall be delivered to the Custodian all in compliance with the specific
requirements of the Custodial Agreement. With respect to each Mortgage
Loan, _____ will be in possession of a complete Mortgage File in
compliance with the _____ Purchase Agreement, except for such documents as
will be delivered to the Custodian;
(l) Mortgage Loan Characteristics. The characteristics of the
related Mortgage Loan Package are as set forth on the description of the
pool characteristics for the applicable Mortgage Loan Package delivered
pursuant to the _____ Purchase Agreement on the related Closing Date in
the form attached as Exhibit B to each related Assignment and Conveyance
Agreement;
(m) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any
Reconstitution Agreement or in connection with the transactions
contemplated hereby (including any Securitization Transfer or Whole Loan
Transfer) contains any untrue statement of fact;
(n) No Brokers. _____ has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
SCH. IV-3
(o) Sale Treatment. _____ intends to reflect the transfer of the
Mortgage Loans as a sale on the books and records of _____;
(p) Owner of Record. _____ is the owner of record of each Mortgage
and the indebtedness evidenced by each Mortgage Note, except for the
Assignments of Mortgage which have been sent for recording, and upon
recordation _____ will be the owner of record of each Mortgage and the
indebtedness evidenced by each Mortgage Note, and upon the sale of the
Mortgage Loans to the Purchaser, _____ will retain the Mortgage Files with
respect thereto in trust only for the purpose of servicing and supervising
the servicing of each Mortgage Loan; and
(q) Reasonable Purchase Price. The consideration received by _____
upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans.
SCH. IV-4
SCHEDULE V
Mortgage Pass-Through Certificates,
Series 200_-___
Representations and Warranties of the Depositor as to the Mortgage Loans
------------------------------------------------------------------------
The Depositor hereby makes the following representation and warranty
to the Trustee as of the Closing Date:
(a) No Mortgage Loan is a Mortgage Loan categorized as "High Cost"
or "Covered" pursuant to Appendix E of Standard & Poor's Glossary. No Mortgage
Loan originated on or October 1, 2002 through March 6, 2003 is governed by the
Georgia Fair Lending Act.
(b) Each 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.
SCH. V-1
EXHIBIT A
To be added to the Class A-1A and Class B-4 Certificates while such Certificates
remain Private Certificates. [IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER
(THE "TRANSFEROR LETTER") IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO
HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER
(THE "144A LETTER") IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN
OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED
AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, in each case as if such
Certificate were evidenced by a Physical Certificate.
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate 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 such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
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
ASSETS.
To be added to the Class B-4 Certificates: [NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS
A-1
TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR AND THE SERVICER, TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SECURITIES
ADMINISTRATOR OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY
UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A
PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 84-14, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ 95-60 OR PTCE 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No: A-1A-[ ]
A-1B-[ ]
A-2A-[ ]
A-2B-[ ]
A-2C-[ ]
M-1-[ ]
M-2-[ ]
M-3-[ ]
▇-▇
▇-▇-[ ]
B-2-[ ]
B-3-[ ]
B-4-[ ]
Cut-off Date: _________, 200_
First Distribution Date: _________, 200_
Initial Certificate Balance of this
Certificate ("Denomination"): $[ ]
Initial Certificate Balances of all
Certificates of this Class: [A-1A: $ ]
[A-1B: $ ]
[A-2A: $ ]
[A-2B: $ ]
[A-2C: $ ]
[M-1: $ ]
[M-2: $ ]
[M-3: $ ]
[B-1: $ ]
[B-2: $ ]
[B-3: $ ]
[B-4: $ ]
A-3
CUSIP: [A-1A: ]
[A-1B: ]
[A-2A: ]
[A-2B: ]
[A-2C: ]
[M-1: ]
[M-2: ]
[M-3: ]
[B-1: ]
[B-2: ]
[B-3: ]
[B-4: ]
A-4
ISIN: [A-1A: ]
[A-1B: ]
[A-2A: ]
[A-2B: ]
[A-2C: ]
[M-1: ]
[M-2: ]
[M-3: ]
[B-1: ]
[B-2: ]
[B-3: ]
[B-4: ]
A-5
BCAP LLC
SABR ____ Trust 200_-___
Mortgage Pass-Through Certificates, Series 200_-___
[Class A-][Class M-][Class B-]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Responsible Party, the Servicer, the Trustee or the Securities
Administrator referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO. ___________ is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the denomination of this Certificate by the aggregate of the denominations of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions pursuant to a Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement") among BCAP LLC, as depositor
(the "Depositor"), ___________, as responsible party (the "Responsible Party"),
___________, as servicer (the "Servicer"), ___________, as loan performance
advisor, ___________, as securities administrator (the "Securities
Administrator") and ___________, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
A-5
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
______________________________________,
not in its individual capacity, but
solely as Securities Administrator
By_________________________________________
Authenticated:
By ___________________________________________
Authorized Signatory of
___________________________________________,
not in its individual capacity,
but solely as Securities Administrator
A-6
BCAP LLC
BCAP LLC Trust 200_-___
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 200_-___ Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the ___ day of each month or, if such day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is the Business Day immediately preceding such Distribution Date; provided,
however, that for any Definitive Certificates, the Record Date shall be the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes, or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the
A-7
Responsible Party, the Servicer and the Securities Administrator with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the 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 hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The 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 Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a 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 and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to ___% of the Cut-off Date
Pool Principal Balance, the Majority Class X Certificateholder in the aggregate
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
A-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________ ,
________________________________________________________________________________
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
________________________________________________________________________________
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
A-9
EXHIBIT B
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER
IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO
THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES
AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH
TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA"),
OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR
A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT
THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF
OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO
EFFECT.
Certificate No. : P-1
Cut-off Date : _________, 200_
First Distribution Date : _________, 200_
Percentage Interest of this
Certificate ("Denomination") : [___]%
B-1
BCAP LLC
SABR Trust 200_-___
Mortgage Pass-Through Certificates, Series 200_-___
Class P
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Responsible
Party, the Servicer or the Securities Administrator referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among BCAP LLC, as depositor (the
"Depositor"), ___________, as responsible party (the "Responsible Party"),
___________, as servicer (the "Servicer"), ___________, as loan performance
advisor, and ___________, as securities administrator (the "Securities
Administrator"), ___________, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purpose, or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Pooling and Servicing Agreement) and deliver either (i) a Rule 144A Letter, in
either case substantially in the form attached to the Agreement, or (ii) a
written Opinion of Counsel to the Securities Administrator that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall be an expense of the transferor.
B-2
No transfer of a Certificate of this Class shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA, Section 4975 of
the Code or any materially similar provisions of applicable federal, state or
local law ("Similar Law"), or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense of
the Securities Administrator.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
B-3
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed. Dated:
______________________________________,
not in its individual capacity, but
solely as Securities Administrator
By__________________________________________
Authenticated:
By __________________________________________
Authorized Signatory of
__________________________________________,
not in its individual capacity,
but solely as Securities Administrator
B-4
BCAP LLC
BCAP LLC Trust 200_-___
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 200_-___ Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the ___ day of each month or, if such ___ day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the month
of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Responsible Party and
the Securities Administrator with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
B-5
provided in the 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 hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The 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 Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minnesota, accompanied by a 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 and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to ___% of the Cut-off Date
Pool Principal Balance, the Majority Class X Certificateholder will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage Loans
and all property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 of the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
B-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
B-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
________________________________________________________________________________
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
________________________________________________________________________________
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
B-8
EXHIBIT C
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN FOUR "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED (I) TO A
PERSON OTHER THAN A PERMITTED TRANSFEREE IN COMPLIANCE WITH SECTION 5.02(C) OF
THE AGREEMENT OR (II) UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES
ADMINISTRATOR A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF
OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS
VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN
SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED
TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : R-1
Cut-off Date : _________, 200_
First Distribution Date : _________, 200_
Percentage Interest of this :
Certificate ("Denomination") 100%
C-1
BCAP LLC
BCAP LLC Trust 200_-___
Mortgage Pass-Through Certificates, Series 200_-___
Class R
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate is distributable
monthly as set forth herein. This Class R Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, the Responsible Party or the
Securities Administrator referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that ________________________ is the registered owner
of the Percentage Interest specified above of any monthly distributions due to
the Class R Certificates pursuant to a Pooling and Servicing Agreement dated as
of the Cut-off Date specified above (the "Agreement") among BCAP LLC, as
depositor (the "Depositor"), ___________, as responsible party (the "Responsible
Party"), ___________, as servicer (the "Servicer"), ___________, as loan
performance advisor, and ___________, as securities administrator (the
"Securities Administrator"), ___________, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Securities Administrator for such
purposes or the office or agency maintained by the Securities Administrator in
New York, New York.
No transfer of a Class R Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator,
the Servicer or the Trust Fund. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
C-2
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is a
Non-Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
C-3
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed. Dated:
______________________________________,
not in its individual capacity, but
solely as Securities Administrator
By__________________________________________
Authenticated:
By __________________________________________
Authorized Signatory of
__________________________________________,
not in its individual capacity,
but solely as Securities Administrator
C-4
BCAP LLC
BCAP LLC Trust 200_-___
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 200_-___ Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the ___ day of each month or, if such day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Responsible Party and
the Securities Administrator with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
C-5
provided in the 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 hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The 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 Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minnesota, accompanied by a 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 and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to ___% of the Cut-off Date
Pool Principal Balance, the Majority Class X Certificateholder will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage Loans
and all property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 of the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
C-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
________________________________________________________________________________
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
________________________________________________________________________________
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
C-7
EXHIBIT D
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN TWO "REGULAR INTERESTS" 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
ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER
IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO
THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES
AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH
TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN
INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE
COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
OR AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR AND THE
SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL
NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT
THE DEPOSITOR, THE SECURITIES ADMINISTRATOR OR THE SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : X-1
D-1
Cut-off Date : __________, 200_
First Distribution Date : __________, 200_
Percentage Interest of this Certificate
("Denomination") : [___]%
D-2
BCAP LLC
BCAP LLC Trust 200_-___
Mortgage Pass-Through Certificates, Series 200_-___
Class X
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the
Responsible Party or the Securities Administrator referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ____________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among BCAP LLC, as depositor (the
"Depositor"), ___________, as responsible party (the "Responsible Party"),
___________, as servicer (the "Servicer"), ___________, as loan performance
advisor, and ___________, as securities administrator (the "Securities
Administrator"), ___________, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Pooling and Servicing Agreement) and deliver either (i) a Rule 144A Letter, in
either case substantially in the form attached to the Agreement, or (ii) a
written Opinion of Counsel to the Securities Administrator that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall be an expense of the transferor.
D-3
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
D-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed. Dated:
______________________________________,
not in its individual capacity, but
solely as Securities Administrator
By__________________________________________
Authenticated:
By __________________________________________
Authorized Signatory of
__________________________________________,
not in its individual capacity,
but solely as Securities Administrator
D-5
BCAP LLC
BCAP LLC Trust 200_-___
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 200_-___ Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the ___ day of each month or, if such ___ day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the month
of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Responsible Party and
the Securities Administrator with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
D-6
provided in the 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 hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The 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 Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minnesota, accompanied by a 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 and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to ___% of the Cut-off Date
Pool Principal Balance, the Majority Class X Certificateholder will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage Loans
and all property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 of the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
D-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
D-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
________________________________________________________________________________
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
________________________________________________________________________________
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
D-9
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
______________________
______________________
______________________
Re: Pooling and Servicing Agreement, dated as of ___________,
200_, by and among BCAP LLC, as Depositor, ___________, as
Servicer, ___________ as Responsible Party, ___________, as
Loan Performance Advisor, ___________, as Securities
Administrator and Custodian and ___________, as Trustee, BCAP
LLC Trust 200_-___ Mortgage Pass-Through Certificates, Series
200_-___
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), for each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan listed
in the attached schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
E-1
______________________________________,
as Custodian
By:___________________________________
Name:_________________________________
Title:________________________________
E-2
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
______________________
______________________
______________________
Re: Pooling and Servicing Agreement, dated as of ___________,
200_, by and among BCAP LLC, as Depositor, ___________, as
Servicer, ___________ as Responsible Party, ___________, as
Loan Performance Advisor, ___________, as Securities
Administrator and Custodian and ___________, as Trustee, BCAP
LLC Trust 200_-___ Mortgage Pass-Through Certificates, Series
200_-___
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form
provided in Section 2.01 of the Pooling and Servicing Agreement; or, if
the Responsible Party has certified or the Custodian otherwise knows that
the related Mortgage has not been returned from the applicable recording
office, a copy of the assignment of the Mortgage (excluding information to
be provided by the recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from
the originator to the last endorsee.
F-1
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2), (3), (15),
(22) and (30) of the Data Tape Information accurately reflects information set
forth in the Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Custodian
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, or
(ii) the collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan. Notwithstanding anything herein to the contrary, the Custodian
has made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the party
so endorsing, as Noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
______________________________________,
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
F-2
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
BCAP LLC Trust 200_-___,
Mortgage Pass-Through Certificates, Series 200_-___
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement (the
"Agreement"), relating to the above-referenced Series, by and among BCAP LLC, as
depositor (the "Depositor"), ___________, as responsible party (the "Responsible
Party"), ___________, as servicer (the "Servicer"), ___________, as loan
performance advisor, and ___________, as securities administrator (the
"Securities Administrator"), ___________, as trustee (the "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 for the benefit of the Depositor
and the Securities Administrator.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are
Non-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 a Non-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 a
Non-Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a
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regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives and, except as
may be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is a Non-Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit H to the Agreement (a "Transferor
Certificate") to the effect that, among other things, such Transferee has no
actual knowledge that the Person to which the Transfer is to be made is a
Non-Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate. The Transferee has historically paid its debts as they have
come due and intends to pay its debts as they come due in the future. The
Transferee intends to pay all taxes due with respect to the Certificate as they
become due.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is not a Disqualified Non-U.S. Person as defined
in the Agreement.
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee 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.
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12. Check the applicable paragraph:
[ ] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] The transfer of the 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
the 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 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; and
(iv) the Transferee determined the consideration paid to it to
acquire the 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.
[ ] None of the above.
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13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ___ day of _______, 20__.
________________________________________
Print Name of Transferee
By: ____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
__________________________________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day ____ of____ , 20__.
_____________________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
G-4
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [_________]
______________________
______________________
______________________
Attn: _________________
Re: BCAP LLC Trust 200_-___ Mortgage Pass-Through Certificates,
Series 200_-___, Class [__ ]
------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above 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 and
(c) to the extent we are disposing of a Residual Certificate, (i) we have no
knowledge the Transferee is a Non-Permitted Transferee and (ii) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (iii) we have
no reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_____________________________________
Print Name of Transferor
By:___________________________________
Authorized Officer
H-1
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [_________]
______________________
______________________
______________________
Attn: _________________
Re: BCAP LLC Trust 200_-___ Mortgage Pass-Through Certificates,
Series 200_-___ [__ ]
------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class A-1A, Class
▇-▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, Class A-2C, Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 or Class B-3 Certificate or we are not an employee benefit plan
that is subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended, or a plan subject to
materially similar provisions of applicable federal, state or local law, nor are
we acting on behalf of any such plan or arrangement nor using the assets of any
such plan or arrangement to effect such acquisition or, with respect to a Class
B-4 or Class X Certificate, the purchaser is an insurance company that is
purchasing this certificate 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,
(e) we have not, nor has anyone acting on our behalf offered, transferred,
pledged, sold or otherwise disposed of the Certificates, any interest in the
Certificates or any
I-1
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, and (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
I-2
ANNEX 1 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the 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, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $___________ as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
--------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
I-3
____ Insurance Company. The Buyer is an insurance company 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 Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) 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 Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will
I-4
continue to rely on the statements made herein because one or more sales to the
Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
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 Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
______________________________________________
Print Name of Transferee
By: __________________________________________
Name:
Title:
Date: ________________________________________
I-5
ANNEX 2 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $_______ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_______ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer'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 (or series thereof) that have the
same investment adviser or investment advisers 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 (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
I-6
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
______________________________________________
Print Name of Transferee
By: __________________________________________
Name:
Title:
IF AN ADVISER:
______________________________________________
Print Name of Buyer
Date: ________________________________________
I-7
EXHIBIT J
FORM OF REQUEST FOR RELEASE
(for Custodian)
To: ______________________
______________________
______________________
Attn: ___________ - ____ 200_-___
Re: In connection with the administration of the Mortgage Loans
held by you as the [Custodian] on behalf of the
Certificateholders pursuant to the Pooling and Servicing
Agreement, dated as of ___________, 200_, by and among BCAP
LLC, as Depositor, ___________, as Servicer, ___________ as
Responsible Party, ___________, as Loan Performance Advisor,
___________, as Securities Administrator and Custodian and
___________, as Trustee, Securitized Asset-Backed Receivables
LLC Trust 200_-___, we request the release, and acknowledge
receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
-------------------------------------
Mortgage Loan Number:
---------------------
Send Custodial File to:
-----------------------
Delivery Method (check one)
---------------------------
____1. Regular mail
____2. Overnight courier (Tracking information: )
If neither box 1 nor 2 is checked, regular mail shall be assumed.
Reason for Requesting Documents (check one)
-------------------------------------------
____1. Mortgage Loan Paid in Full. (The Servicer hereby certifies that all
amounts received in connection therewith have been credited to the
Collection Account as provided in the Pooling and Servicing
Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03 of the Pooling and
Servicing Agreement. (The Servicer hereby certifies that the
repurchase price has been credited to the Collection Account as
provided in the Pooling and Servicing Agreement.)
J-1
____3. Mortgage Loan Liquidated by _________________. (The Servicer hereby
certifies that all proceeds of foreclosure, insurance, condemnation
or other liquidation have been finally received and credited to the
Collection Account pursuant to the Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form if requested by us.
______________________________________
By: __________________________________
Name:
Title:
Date:
[ACKNOWLEDGED AND AGREED:
______________________________________
By: _____________________________________________________
Name:
Title:
Date: ]
J-2
EXHIBIT K
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and which shall be retained by the Servicer or delivered to and
retained by the Custodian, as applicable:
(a) The documents or instruments set forth as items (i) to (ix) in
Section 2.01(b) of the Agreement.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if applicable.
(e) Verification of acceptable evidence of source and amount of down
payment.
(f) Credit report on Mortgagor.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property.
(j) 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.
(k) All required disclosure statements.
(l) If required in an appraisal, termite report, structural
engineer's report, water potability and septic certification.
(m) Sales contract, if applicable.
Evidence of payment of taxes and insurance, insurance claim
files, correspondence, current and historical computerized data files (which
include records of tax receipts and payment history from the date of
origination), and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage loan file and which are
required to document the Mortgage Loan or to service the Mortgage Loan.
K-1
EXHIBIT L
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
Re: BCAP LLC Trust 200_-___ (the "Trust"), Mortgage Pass-Through
Certificates, Series 200_-___, issued pursuant to the Pooling and
Servicing Agreement, dated as ___________, 200_, by and among BCAP
LLC, as Depositor, ___________, as Servicer, ___________ as
Responsible Party, ___________, as Loan Performance Advisor,
___________, as Securities Administrator and Custodian and
___________, as Trustee
------------------------------------------------------------------
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K ("Annual
Report"), and all reports on Form 10-D (collectively with this Annual Report,
the "Reports") required to be filed in respect of period covered by this Annual
Report, of the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
this Annual Report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this Annual Report is included in the Reports;
4. Based on my knowledge and the compliance statements required in
this Annual Report under Item 1123 of Regulation AB, and except as disclosed in
the Reports, the Servicers have fulfilled their obligations under the Pooling
and Servicing Agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria required to be included in this
Annual Report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules 13a-18 and 15d-18 have been included as an exhibit to this Annual Report,
except as otherwise disclosed in this Annual Report. Any material instances of
non-compliance described in such reports have been disclosed in this Annual
Report.
In giving the certifications above, I have reasonably relied on
information provided to me by the following parties: the Securities
Administrator and the Servicer.
Date: ____________________________________
___________________________________________
[Signature] [Title]
L-1
EXHIBIT M
FORM OF CERTIFICATION TO BE
PROVIDED BY THE SECURITIES ADMINISTRATOR TO DEPOSITOR
Re: BCAP LLC Trust 200_-___ (the "Trust"), Mortgage Pass-Through
Certificates, Series 200_-___, issued pursuant to the Pooling
and Servicing Agreement, dated as ___________, 200_, by and
among BCP LLC, as Depositor, ___________, as Servicer, ________
Responsible Party, ___________, as Loan Performance Advisor,
as ___________, as Securities Administrator and Custodian and
___________, as Trustee
----------------------------------------------------------------
The Securities Administrator hereby certifies to the Depositor and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 10-D required to be
filed in respect of the period covered by the Annual Report (collectively with
the Annual Report, the "Reports"), of the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the Annual Report;
3. Based on my knowledge, the distribution information required to
be provided by the Securities Administrator under the Pooling and Servicing
Agreement for inclusion in the Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the
Securities Administrator under the Pooling and Servicing Agreement, and based on
my knowledge and the compliance review conducted in preparing the compliance
statement of the Securities Administrator required in the Annual Report under
Item 1123 of Regulation AB, and except as disclosed in the Reports, the
Securities Administrator has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects; and
5. The report on assessment of compliance with servicing criteria
applicable to the Securities Administrator for asset-backed securities of the
Securities Administrator and each Subcontractor utilized by the Securities
Administrator and its related attestation report on assessment of compliance
with servicing criteria required to be included in the Annual Report in
accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 has been included as an exhibit to the Annual Report. Any material
instances of non-compliance are described in such report and have been disclosed
in the Annual Report.
Date:
__________________________________________
M-1
Name: __________________________________
Title: __________________________________
M-2
EXHIBIT N
FORM OF SERVICER'S CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: BCAP LLC Trust 200_-___ (the "Trust"), Mortgage Pass-Through
Certificates, Series 200_-___, issued pursuant to the Pooling
and Servicing Agreement, dated as ___________, 200_, by and
among BCAP LLC, as Depositor, ___________, as Servicer,
___________ as Responsible Party, ___________, as Loan
Performance Advisor, ___________, as Securities Administrator
and Custodian and ___________, as Trustee
-------------------------------------------------------------
I, [identify the certifying individual], certify to the Depositor
and the Securities Administrator, and their officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I am responsible for reviewing the activities performed by the
Servicer under the Pooling and Servicing Agreement and I have reviewed the
servicer compliance statement of the Servicer and the compliance statements of
each Subservicer, if any, engaged by the Servicer provided to the Depositor and
the Securities Administrator for the Trust's fiscal year [___] in accordance
with Item 1123 of Regulation AB (each a "Compliance Statement"), the report on
assessment of the Servicer's compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the "Servicing Criteria") and reports on
assessment of compliance with servicing criteria for asset-backed securities of
the Servicer and of each Subservicer or Subcontractor, if any, engaged or
utilized by the Servicer provided to the Depositor and the Securities
Administrator for the Trust's fiscal year [___] 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 (each a "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 related to each Servicing Assessment (each a "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered or caused to be delivered by the Servicer
pursuant to the Agreement (collectively, the "Servicing Information");
2. Based on my knowledge, the 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 Servicing Information;
3. Based on my knowledge, the servicing information required to be
provided to the Securities Administrator by the Servicer pursuant to the Pooling
and Servicing Agreement has been provided to the Securities Administrator;
4. Based on my knowledge and the compliance review conducted in
preparing the Compliance Statement of the Servicer and, if applicable, reviewing
each
N-1
Compliance Statement of each Subservicer, if any, engaged by the Servicer, and
except as disclosed in such Compliance Statement[(s)], the Servicer [(directly
and through its Subservicers, if any)] has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects.
5. Each Servicing Assessment of the Servicer and of each Subservicer
or Subcontractor, if any, engaged or utilized by the Servicer and its related
Attestation Report required to be included in the Annual Report in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has
been provided to the Depositor and the Securities Administrator. Any material
instances of non-compliance are described in any such Servicing Assessment or
Attestation Report.
Date:
(Title) [Signature]
N-2
EXHIBIT O
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Securities Administrator],
[the Servicer], [each Subservicer] and [each Subcontractor] shall address, at a
minimum, the criteria identified as below as "Applicable Servicing Criteria":
-------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE SERVICING CRITERIA
-------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in Securities Administrator/Servicer
accordance with the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the Securities Administrator/Servicer
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 mortgage loans are maintained. N/A
-------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function
throughout the reporting period in the amount of coverage Servicer
required by and otherwise in accordance with the terms of the
transaction agreements.
-------------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
-------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no Servicer
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 behalf of an obligor
or to an investor are made only by authorized personnel. Servicer/Securities Administrator
-------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees charged Servicer
for such advances, are made, reviewed and approved as
specified in the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with Servicer/Securities Administrator
respect to commingling of cash) as set forth in the
transaction agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally insured
depository institution" with respect to a foreign financial Securities Administrator/Servicer
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 prevent unauthorized Servicer/Securities Administrator
access.
-------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction Servicer/Securities Administrator
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.
-------------------------------------------------------------------------------------------------------------------
O-1
-------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE SERVICING CRITERIA
-------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance
with timeframes and other terms set forth in the transaction Securities Administrator/Servicer
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
mortgage loans serviced by the Servicer.
-------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, Securities Administrator/Servicer Securities Administrator/Servicer
distribution priority and other terms set forth in the
transaction agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such Securities Administrator/Servicer
other number of days specified in the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree
with cancelled checks, or other Securities Securities Administrator/Servicer
Administrator/Servicer form of payment, or custodial bank
statements.
-------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage Custodian/Servicer
loan documents.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Custodian/Servicer
required by the transaction agreements
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved Custodian/Servicer in accordance Custodian/Servicer
with any conditions or requirements in the transaction
agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted
to the Servicer's obligor records maintained no more than two
business days after receipt, or such other number of days Servicer
specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with
the Servicer's records with respect to an obligor's unpaid Servicer
principal balance.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in Servicer
accordance with the transaction agreements and related pool
asset documents.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted and Servicer
concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during
the period a mortgage loan 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 Servicer
in monitoring delinquent mortgage loans 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 return for mortgage
loans with variable rates are computed based on the related Servicer
mortgage loan documents.
-------------------------------------------------------------------------------------------------------------------
O-2
-------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE SERVICING CRITERIA
-------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the Servicer
transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage
loan documents and state laws; and (C) such funds are returned
to the obligor within 30 calendar days of full repayment of
the related mortgage loans, or such other number of days
specified in the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has been Servicer
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 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 Servicer
was due to the obligor's error or omission.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within
two business days to the obligor's records maintained by the Servicer
servicer, or such other number of days specified in the
transaction agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction Servicer/Securities Administrator
agreements.
-------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item Securities Administrator, if
1114(a)(1) through (3) or Item 1115 of Regulation AB, is applicable.
maintained as set forth in the transaction agreements
-------------------------------------------------------------------------------------------------------------------
O-3
EXHIBIT P
ADDITIONAL FORM 10-D DISCLOSURE
----------------------------------------------------------- ----------------------------------------------------------
Item on Form 10-D Party Responsible
----------------------------------------------------------- ----------------------------------------------------------
Item 1: Distribution and Pool Performance Servicer
Information Securities Administrator
Depositor
Any information required by Item 1121 of Regulation
AB which is NOT included on the Monthly Statement
----------------------------------------------------------- ----------------------------------------------------------
Item 2: Legal Proceedings (i) All parties to the Agreement (as to themselves),
(ii) the Securities Administrator and Servicer as to the
per Item 1117 of Regulation AB issuing entity, (iii) the Depositor as to the sponsor,
or any Regulation AB Item 1100(d)(1) party
----------------------------------------------------------- ----------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
----------------------------------------------------------- ----------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
----------------------------------------------------------- ----------------------------------------------------------
Item 5: Submission of Matters to a Vote of Depositor or the party to this Agreement submitting such
Security Holders matter to a vote of Certificateholders
----------------------------------------------------------- ----------------------------------------------------------
Item 6: Significant Obligors of Pool Assets N/A
----------------------------------------------------------- ----------------------------------------------------------
Item 7: Significant Enhancement Provider Depositor
Information
----------------------------------------------------------- ----------------------------------------------------------
Item 8: Other Information Any party responsible for disclosure items on Form 8-K
----------------------------------------------------------- ----------------------------------------------------------
Item 9: Exhibits Securities Administrator
Depositor
----------------------------------------------------------- ----------------------------------------------------------
P-1
EXHIBIT Q
ADDITIONAL FORM 10-K DISCLOSURE
------------------------------------------------------- -------------------------------------------------------------
Item on Form 10-K Party Responsible
------------------------------------------------------- -------------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure items on Form 8-K
------------------------------------------------------- -------------------------------------------------------------
Item 15: Exhibits, Financial Statement Securities Administrator
Schedules Depositor
------------------------------------------------------- -------------------------------------------------------------
Additional Item: (i) All parties to the Agreement (as to themselves), (ii)
the Securities Administrator and Servicer as to the Trust,
Disclosure per Item 1117 of Regulation AB (iii) the Depositor as to the sponsor, or any 1100(d)(1)
party
------------------------------------------------------- -------------------------------------------------------------
Additional Item: (i) All parties to the Agreement as to themselves, (ii) the
Disclosure per Item 1119 of Regulation AB Depositor as to the sponsor, or any derivative provider
------------------------------------------------------- -------------------------------------------------------------
Additional Item: N/A
Disclosure per Item 1112(b) of Regulation AB
------------------------------------------------------- -------------------------------------------------------------
Additional Item: Depositor
Disclosure per Items 1114(b) and 1115(b) of
Regulation AB
------------------------------------------------------- -------------------------------------------------------------
Q-1
EXHIBIT R
FORM 8-K DISCLOSURE INFORMATION
------------------------------------------------------------------ ----------------------------------------------------
Item on Form 8-K Party Responsible
------------------------------------------------------------------ ----------------------------------------------------
1.01- Entry into a Material Definitive Agreement The party to this Agreement entering into
such material definitive agreement
------------------------------------------------------------------ ----------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement The party to this Agreement requesting
termination of a material
definitive agreement
------------------------------------------------------------------ ----------------------------------------------------
Item 1.03- Bankruptcy or Receivership (i) All parties to the Agreement (as to
themselves), (ii) the Securities Administrator and
Servicer as to the Trust, (iii) the Depositor as
to the sponsor or any 1100(d)(1) party
------------------------------------------------------------------ ----------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase a Securities Administrator
Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
------------------------------------------------------------------ ----------------------------------------------------
Item 3.03- Material Modification to Rights of Security Securities Administrator
Holders
------------------------------------------------------------------ ----------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or Depositor
Bylaws; Change of Fiscal Year
------------------------------------------------------------------ ----------------------------------------------------
Item 6.01- ABS Informational and Computational Material Depositor
------------------------------------------------------------------ ----------------------------------------------------
Item 6.02- Change of Servicer or Securities Administrator Servicer, Securities Administrator, Depositor
------------------------------------------------------------------ ----------------------------------------------------
Item 6.03- Change in Credit Enhancement or External Support Depositor/Securities Administrator
------------------------------------------------------------------ ----------------------------------------------------
Item 6.04- Failure to Make a Required Distribution Securities Administrator
------------------------------------------------------------------ ----------------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
------------------------------------------------------------------ ----------------------------------------------------
Item 7.01- Regulation FD Disclosure Depositor
------------------------------------------------------------------ ----------------------------------------------------
Item 8.01 Depositor
------------------------------------------------------------------ ----------------------------------------------------
R-1
EXHIBIT S
INTEREST RATE SWAP AGREEMENT
S-1
EXHIBIT T
CLASS M CAP AGREEMENT
T-1
EXHIBIT U
CLASS B CAP AGREEMENT
U-1
EXHIBIT V
SERVICER REMITTANCE REPORT FORMAT
------------------------------------------------------------------------------------------------------------------
Standard File Layout - Master Servicing
------------------------------------------------------------------------------------------------------------------
Column Name Description Decimal
----------------------------- ------------------------------------------------------------------- ---------------
SER_INVESTOR_NBR A value assigned by the Servicer to define a group of loans.
----------------------------- ------------------------------------------------------------------- ---------------
LOAN_NBR A unique identifier assigned to each loan by the investor.
----------------------------- ------------------------------------------------------------------- ---------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may be
different than the LOAN_NBR.
----------------------------- ------------------------------------------------------------------- ---------------
BORROWER_NAME The borrower name as received in the file. It is not separated
by first and last name.
----------------------------- ------------------------------------------------------------------- ---------------
SCHED_PAY_AMT Scheduled monthly principal and scheduled interest payment that a 2
borrower is expected to pay, P&I constant.
----------------------------- ------------------------------------------------------------------- ---------------
NOTE_INT_RATE The loan interest rate as reported by the Servicer. 4
----------------------------- ------------------------------------------------------------------- ---------------
NET_INT_RATE The loan gross interest rate less the service fee rate as 4
reported by the Servicer.
----------------------------- ------------------------------------------------------------------- ---------------
SERV_FEE_RATE The servicer's fee rate for a loan as reported by the Servicer. 4
----------------------------- ------------------------------------------------------------------- ---------------
SERV_FEE_AMT The servicer's fee amount for a loan as reported by the Servicer. 2
----------------------------- ------------------------------------------------------------------- ---------------
NEW_PAY_AMT The new loan payment amount as reported by the Servicer. 2
----------------------------- ------------------------------------------------------------------- ---------------
NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4
----------------------------- ------------------------------------------------------------------- ---------------
ARM_INDEX_RATE The index the Servicer is using to calculate a forecasted rate. 4
----------------------------- ------------------------------------------------------------------- ---------------
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the beginning of the 2
processing cycle.
----------------------------- ------------------------------------------------------------------- ---------------
ACTL_END_PRIN_BAL The borrower's actual principal balance at the end of the 2
processing cycle.
----------------------------- ------------------------------------------------------------------- ---------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that the borrower's next
payment is due to the Servicer, as reported by Servicer.
----------------------------- ------------------------------------------------------------------- ---------------
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2
----------------------------- ------------------------------------------------------------------- ---------------
SERV_CURT_DATE_1 The curtailment date associated with the first curtailment
amount.
----------------------------- ------------------------------------------------------------------- ---------------
CURT_ADJ_ AMT_1 The curtailment interest on the first curtailment amount, if 2
applicable.
----------------------------- ------------------------------------------------------------------- ---------------
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2
----------------------------- ------------------------------------------------------------------- ---------------
SERV_CURT_DATE_2 The curtailment date associated with the second curtailment
amount.
----------------------------- ------------------------------------------------------------------- ---------------
CURT_ADJ_ AMT_2 The curtailment interest on the second curtailment amount, if 2
applicable.
----------------------------- ------------------------------------------------------------------- ---------------
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2
----------------------------- ------------------------------------------------------------------- ---------------
SERV_CURT_DATE_3 The curtailment date associated with the third curtailment amount.
----------------------------- ------------------------------------------------------------------- ---------------
--------------------------------------------------------------------------------
Standard File Layout - Master Servicing
--------------------------------------------------------------------------------
Column Name Format Comment Max Size
----------------------------- ---------------------------------- -------------
SER_INVESTOR_NBR Text up to 10 digits 20
----------------------------- ---------------------------------- -------------
LOAN_NBR Text up to 10 digits 10
----------------------------- ---------------------------------- -------------
SERVICER_LOAN_NBR Text up to 10 digits 10
----------------------------- ---------------------------------- -------------
BORROWER_NAME Maximum length of 30 (Last, 30
First)
----------------------------- ---------------------------------- -------------
SCHED_PAY_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
NOTE_INT_RATE Max length of 6 6
----------------------------- ---------------------------------- -------------
NET_INT_RATE Max length of 6 6
----------------------------- ---------------------------------- -------------
SERV_FEE_RATE Max length of 6 6
----------------------------- ---------------------------------- -------------
SERV_FEE_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
NEW_PAY_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
NEW_LOAN_RATE Max length of 6 6
----------------------------- ---------------------------------- -------------
ARM_INDEX_RATE Max length of 6 6
----------------------------- ---------------------------------- -------------
ACTL_BEG_PRIN_BAL No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
ACTL_END_PRIN_BAL No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
BORR_NEXT_PAY_DUE_DATE MM/DD/YYYY 10
----------------------------- ---------------------------------- -------------
SERV_CURT_AMT_1 No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SERV_CURT_DATE_1 MM/DD/YYYY 10
----------------------------- ---------------------------------- -------------
CURT_ADJ_ AMT_1 No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SERV_CURT_AMT_2 No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SERV_CURT_DATE_2 MM/DD/YYYY 10
----------------------------- ---------------------------------- -------------
CURT_ADJ_ AMT_2 No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SERV_CURT_AMT_3 No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SERV_CURT_DATE_3 MM/DD/YYYY 10
----------------------------- ---------------------------------- -------------
V-1
------------------------------------------------------------------------------------------------------------------
Standard File Layout - Master Servicing
------------------------------------------------------------------------------------------------------------------
Column Name Description Decimal
----------------------------- ------------------------------------------------------------------- ---------------
----------------------------- ------------------------------------------------------------------- ---------------
CURT_ADJ_AMT_3 The curtailment interest on the third curtailment amount, if 2
applicable.
----------------------------- ------------------------------------------------------------------- ---------------
PIF_AMT The loan "paid in full" amount as reported by the Servicer. 2
----------------------------- ------------------------------------------------------------------- ---------------
PIF_DATE The paid in full date as reported by the Servicer.
----------------------------- ------------------------------------------------------------------- ---------------
ACTION_CODE The standard FNMA numeric code used to
indicate the default/delinquent status
of a particular loan.
----------------------------- ------------------------------------------------------------------- ---------------
INT_ADJ_AMT The amount of the interest adjustment as reported by the Servicer. 2
----------------------------- ------------------------------------------------------------------- ---------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if applicable. 2
----------------------------- ------------------------------------------------------------------- ---------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2
----------------------------- ------------------------------------------------------------------- ---------------
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if applicable. 2
----------------------------- ------------------------------------------------------------------- ---------------
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at the beginning 2
of the cycle date to be passed through to investors.
----------------------------- ------------------------------------------------------------------- ---------------
SCHED_END_PRIN_BAL The scheduled principal balance due to investors at the end of a 2
processing cycle.
----------------------------- ------------------------------------------------------------------- ---------------
SCHED_PRIN_AMT The scheduled principal amount as reported by the Servicer for 2
the current cycle -- only applicable for Scheduled/Scheduled
Loans.
----------------------------- ------------------------------------------------------------------- ---------------
SCHED_NET_INT The scheduled gross interest amount less the service fee amount 2
for the current cycle as reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
----------------------------- ------------------------------------------------------------------- ---------------
ACTL_PRIN_AMT The actual principal amount collected by the Servicer for the 2
current reporting cycle -- only applicable for Actual/Actual
Loans.
----------------------------- ------------------------------------------------------------------- ---------------
ACTL_NET_INT The actual gross interest amount less the service fee amount for 2
the current reporting cycle as reported
by the Servicer -- only applicable for
Actual/Actual Loans.
----------------------------- ------------------------------------------------------------------- ---------------
PREPAY_PENALTY_ AMT The penalty amount received when a borrower prepays on his loan 2
as reported by the Servicer.
----------------------------- ------------------------------------------------------------------- ---------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan waived by the servicer. 2
----------------------------- ------------------------------------------------------------------- ---------------
----------------------------- ------------------------------------------------------------------- ---------------
MOD_DATE The Effective Payment Date of the Modification for the loan.
----------------------------- ------------------------------------------------------------------- ---------------
MOD_TYPE The Modification Type.
----------------------------- ------------------------------------------------------------------- ---------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest advances made by 2
Servicer.
----------------------------- ------------------------------------------------------------------- ---------------
--------------------------------------------------------------------------------
Standard File Layout - Master Servicing
--------------------------------------------------------------------------------
Column Name Format Comment Max Size
----------------------------- ---------------------------------- -------------
----------------------------- ---------------------------------- -------------
CURT_ADJ_AMT_3 No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
PIF_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
PIF_DATE MM/DD/YYYY 10
----------------------------- ---------------------------------- -------------
Action Code Key: 15=Bankruptcy, 2
30=Foreclosure, , 60=PIF,
63=Substitution,
65=Repurchase,70=REO
----------------------------- ---------------------------------- -------------
ACTION_CODE
----------------------------- ---------------------------------- -------------
INT_ADJ_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SOLDIER_SAILOR_ADJ_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
NON_ADV_LOAN_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
LOAN_LOSS_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SCHED_BEG_PRIN_BAL No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SCHED_END_PRIN_BAL No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SCHED_PRIN_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
SCHED_NET_INT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
ACTL_PRIN_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
ACTL_NET_INT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
PREPAY_PENALTY_ AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
PREPAY_PENALTY_ WAIVED No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
MOD_DATE MM/DD/YYYY 10
----------------------------- ---------------------------------- -------------
MOD_TYPE Varchar - value can be alpha or 30
numeric
----------------------------- ---------------------------------- -------------
DELINQ_P&I_ADVANCE_AMT No commas(,) or dollar signs ($) 11
----------------------------- ---------------------------------- -------------
V-2
EXHIBIT W
ADDITIONAL DISCLOSURE NOTIFICATION
______________________
______________________
______________________
Attn:
Re: RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing
Agreement, dated as of [____] [__], 200[_], among [____], as [____], [____], as
[____], [____], as [____] and [____], as [____]. The undersigned, as [____],
hereby notifies you that certain events have come to our attention that [will]
[may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
------------------------------------------------------------
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
--------------------------------------------------------------------
Any inquiries related to this notification should be directed to
[____], phone number: [____]; email address: [____].
[NAME OF PARTY],
as [role]
By: ________________________________
Name:
Title:
W-1
EXHIBIT X
SPONSOR REPRESENTATION LETTER
X-1