CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., Depositor, DLJ MORTGAGE CAPITAL, INC., Seller, WELLS FARGO BANK, N.A., Master Servicer and Trust Administrator, TAYLOR, BEAN & WHITAKER MORTGAGE CORP. Servicer and U.S. BANK NATIONAL ASSOCIATION,...
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
DLJ
MORTGAGE CAPITAL, INC.,
Seller,
XXXXX
FARGO BANK, N.A.,
Master
Servicer and Trust Administrator,
XXXXXX,
BEAN & XXXXXXXX MORTGAGE CORP.
Servicer
and
U.S.
BANK
NATIONAL ASSOCIATION,
Trustee
Dated
as
of August 1, 2006
relating
to
TBW
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-4
TABLE
OF CONTENTS
ARTICLE
I DEFINITIONS
|
10
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES
|
42
|
|
|
||
SECTION
2.01
|
Conveyance
of Trust Fund.
|
42
|
SECTION
2.02
|
Acceptance
by the Trustee.
|
45
|
SECTION
2.03
|
Representations
and Warranties of the Seller and the Master Servicer.
|
47
|
SECTION
2.04
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
50
|
SECTION
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
50
|
SECTION
2.06
|
Issuance
of Certificates.
|
50
|
SECTION
2.07
|
REMIC
Provisions.
|
50
|
SECTION
2.08
|
Covenants
of the Master Servicer and the Servicer.
|
56
|
ARTICLE
III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
57
|
|
SECTION
3.01
|
Master
Servicing of the Mortgage Loans.
|
57
|
SECTION
3.02
|
[Reserved]
|
58
|
SECTION
3.03
|
Trustee
to Act as Master Servicer.
|
58
|
SECTION
3.04
|
Certificate
Account.
|
58
|
SECTION
3.05
|
Access
to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections.
|
59
|
SECTION
3.06
|
Permitted
Withdrawals from the Certificate Account.
|
59
|
SECTION
3.07
|
[Reserved]
|
60
|
SECTION
3.08
|
Trustee
and Trust Administrator to Cooperate; Release of Mortgage
Files.
|
60
|
SECTION
3.09
|
Master
Servicing Compensation.
|
60
|
SECTION
3.10
|
Access
to Certain Documentation.
|
61
|
SECTION
3.11
|
[Reserved].
|
61
|
SECTION
3.12
|
[Reserved].
|
62
|
SECTION
3.13
|
Designated
Mortgage Loans.
|
62
|
SECTION
3.14
|
Indemnification
of Servicer and Master Servicer
|
63
|
ARTICLE
IV PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
|
64
|
|
SECTION
4.01
|
Priorities
of Distribution.
|
64
|
SECTION
4.02
|
Allocation
of Losses.
|
68
|
SECTION
4.03
|
Recoveries.
|
68
|
SECTION
4.04
|
Monthly
Statements to Certificateholders.
|
68
|
SECTION
4.05
|
Servicer
and Master Servicer to Cooperate.
|
69
|
SECTION
4.06
|
[Reserved]
|
70
|
SECTION
4.07
|
Basis
Risk Reserve Fund.
|
70
|
SECTION
4.08
|
The
Interest Rate Cap Agreements
|
71
|
ARTICLE
V [Reserved]
|
73
|
|
ARTICLE
VI THE CERTIFICATES
|
74
|
|
SECTION
6.01
|
The
Certificates.
|
74
|
SECTION
6.02
|
Registration
of Transfer and Exchange of Certificates.
|
75
|
SECTION
6.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
80
|
SECTION
6.04
|
Persons
Deemed Owners.
|
81
|
SECTION
6.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
81
|
SECTION
6.06
|
Maintenance
of Office or Agency.
|
81
|
SECTION
6.07
|
Book-Entry
Certificates.
|
82
|
SECTION
6.08
|
Notices
to Clearing Agency.
|
82
|
SECTION
6.09
|
Definitive
Certificates.
|
83
|
ARTICLE
VII THE DEPOSITOR, THE SELLER, THE MASTER SERVICER AND, THE
SERVICER
|
84
|
|
SECTION
7.01
|
Liabilities
of the Seller, the Depositor, the Master Servicer and, the
Servicer.
|
84
|
SECTION
7.02
|
Merger
or Consolidation of the Seller, the Depositor or the Master
Servicer.
|
84
|
SECTION
7.03
|
Limitation
on Liability of the Seller, the Depositor, the Master Servicer and
Others.
|
85
|
SECTION
7.04
|
Master
Servicer Not to Resign; Transfer of Servicing.
|
85
|
SECTION
7.05
|
Master
Servicer, Seller and Servicer May Own Certificates.
|
86
|
ARTICLE
VIII DEFAULT
|
87
|
|
SECTION
8.01
|
Events
of Default.
|
87
|
SECTION
8.02
|
Master
Servicer to Act; Appointment of Successor.
|
89
|
SECTION
8.03
|
Notification
to Certificateholders.
|
91
|
SECTION
8.04
|
Waiver
of Events of Default.
|
91
|
ARTICLE
IX CONCERNING THE TRUSTEE
|
93
|
|
SECTION
9.01
|
Duties
of Trustee.
|
93
|
SECTION
9.02
|
Certain
Matters Affecting the Trustee.
|
94
|
SECTION
9.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
96
|
SECTION
9.04
|
Trustee
May Own Certificates.
|
96
|
SECTION
9.05
|
Trustee’s
Fees and Expenses.
|
97
|
SECTION
9.06
|
Eligibility
Requirements for Trustee.
|
97
|
SECTION
9.07
|
Resignation
and Removal of Trustee.
|
98
|
SECTION
9.08
|
Successor
Trustee.
|
98
|
SECTION
9.09
|
Merger
or Consolidation of Trustee.
|
99
|
SECTION
9.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
99
|
SECTION
9.11
|
Office
of the Trustee.
|
100
|
ARTICLE
X CONCERNING THE TRUST ADMINISTRATOR
|
101
|
|
SECTION
10.01
|
Duties
of Trust Administrator.
|
101
|
SECTION
10.02
|
Certain
Matters Affecting the Trust Administrator.
|
103
|
SECTION
10.03
|
Trust
Administrator Not Liable for Certificates or Mortgage
Loans.
|
104
|
2
SECTION
10.04
|
Trust
Administrator May Own Certificates.
|
105
|
SECTION
10.05
|
Trust
Administrator’s Fees and Expenses.
|
105
|
SECTION
10.06
|
Eligibility
Requirements for Trust Administrator.
|
106
|
SECTION
10.07
|
Resignation
and Removal of Trust Administrator.
|
106
|
SECTION
10.08
|
Successor
Trust Administrator.
|
107
|
SECTION
10.09
|
Merger
or Consolidation of Trust Administrator.
|
108
|
SECTION
10.10
|
Appointment
of Co-Trust Administrator or Separate Trust Administrator.
|
108
|
SECTION
10.11
|
Office
of the Trust Administrator.
|
109
|
SECTION
10.12
|
Tax
Return.
|
110
|
SECTION
10.13
|
[Reserved].
|
110
|
SECTION
10.14
|
Determination
of Certificate Index.
|
110
|
ARTICLE
XI TERMINATION
|
111
|
|
SECTION
11.01
|
Termination
upon Liquidation or Purchase of all Mortgage Loans.
|
111
|
SECTION
11.02
|
[Reserved]
|
112
|
SECTION
11.03
|
Procedure
Upon Optional Termination or Auction Sale.
|
112
|
SECTION
11.04
|
Additional
Termination Requirements.
|
114
|
ARTICLE
XII MISCELLANEOUS PROVISIONS
|
116
|
|
SECTION
12.01
|
Amendment.
|
116
|
SECTION
12.02
|
Recordation
of Agreement; Counterparts.
|
118
|
SECTION
12.03
|
Governing
Law.
|
118
|
SECTION
12.04
|
Intention
of Parties.
|
119
|
SECTION
12.05
|
Notices.
|
120
|
SECTION
12.06
|
Severability
of Provisions.
|
121
|
SECTION
12.07
|
Limitation
on Rights of Certificateholders.
|
121
|
SECTION
12.08
|
Certificates
Nonassessable and Fully Paid.
|
122
|
SECTION
12.09
|
Protection
of Assets.
|
122
|
SECTION
12.10
|
Non-Solicitation.
|
122
|
ARTICLE
XIII [Reserved]
|
124
|
|
ARTICLE
XIV EXCHANGE ACT REPORTING
|
124
|
|
SECTION
14.01
|
Commission
Reporting.
|
124
|
SECTION
14.02
|
Form
10-D Reporting
|
124
|
SECTION
14.03
|
Form
10-K Reporting
|
125
|
SECTION
14.04
|
Form
8-K Reporting
|
127
|
SECTION
14.05
|
Delisting;
Amendment; Late Filing of Reports
|
128
|
SECTION
14.06
|
Annual
Statements of Compliance
|
128
|
SECTION
14.07
|
Annual
Assessments of Compliance
|
129
|
SECTION
14.08
|
Accountant’s
Attestation
|
130
|
SECTION
14.09
|
Xxxxxxxx-Xxxxx
Certification
|
131
|
SECTION
14.10
|
Indemnification
|
131
|
3
EXHIBITS
Exhibit
A:
|
Form
of Class A Certificate
|
A-1
|
Exhibit
B:
|
Form
of Class M Certificate
|
B-1
|
Exhibit
C:
|
Form
of Class AR Certificate
|
C-1
|
Exhibit
D:
|
Form
of Class X Certificates
|
D-1
|
Exhibit
E:
|
Form
of Class P Certificate
|
E-1
|
Exhibit
F:
|
Form
of Lost Note Affidavit
|
F-1
|
Exhibit
G:
|
[Reserved]
|
G-1
|
Exhibit
H:
|
Form
of Reverse of Certificates
|
H-1
|
Exhibit
I:
|
Form
of Servicer Information
|
I-1
|
Exhibit
J:
|
Form
of Initial Certification of Trustee
|
J-1
|
Exhibit
K:
|
Form
of Final Certification of Trustee
|
K-1
|
Exhibit
L:
|
Form
of Request for Release
|
L-1
|
Exhibit
M:
|
Form
of Transferor Certificate
|
M-1
|
Exhibit
N-1
|
Form
of Investment Letter
|
N-1-1
|
Exhibit
N-2:
|
Form
of Rule 144A Letter
|
N-2-1
|
Exhibit
N-3
|
Form
of Regulation S Letter
|
N-3-1
|
Exhibit
O:
|
Form
of Investor Transfer Affidavit and Agreement
|
O-1
|
Exhibit
P:
|
Form
of Transfer Certificate
|
P-1
|
Exhibit
Q:
|
Relevant
Servicing Criteria
|
Q-1
|
Exhibit
R:
|
Additional
Form 10-D Disclosure
|
R-1
|
Exhibit
S:
|
Form
of Monthly Statement to Certificateholders
|
S-1
|
Exhibit
T:
|
Form
8-K Disclosure Information
|
T-1
|
Exhibit
U:
|
Form
of Annual Certification
|
U-1
|
Exhibit
V:
|
Additional
Disclosure Notification
|
V-1
|
Exhibit
W:
|
Additional
Form 10-K Disclosure
|
W-1
|
SCHEDULES
|
||
Schedule
I:
|
Mortgage
Loan Schedule
|
I-1
|
Schedule
IIA:
|
Representations
and Warranties of DLJMC
|
IIA-1
|
Schedule
IIB:
|
Representations
and Warranties of Xxxxx Fargo
|
IIB-1
|
Schedule
IIIA:
|
Representations
and Warranties of DLJMC as to the Mortgage Loans
|
IIIA-1
|
4
THIS
POOLING AND SERVICING AGREEMENT, dated as of August 1, 2006, is hereby executed
by and among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware
corporation, as depositor (the “Depositor”),
DLJ
MORTGAGE CAPITAL, INC. (“DLJMC”),
a
Delaware corporation, as seller (“Seller”),
XXXXX
FARGO BANK, N.A. (“Xxxxx
Fargo”),
a
national banking association, in its capacity as master servicer (the
“Master
Servicer”)
and as
trust administrator (the “Trust
Administrator”),
XXXXXX, BEAN & XXXXXXXX MORTGAGE CORP., a Florida corporation, as servicer
(the “Servicer”),
and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee
(the
“Trustee”).
Capitalized terms used in this Agreement and not otherwise defined shall have
the meanings assigned to them in Article I below.
PRELIMINARY
STATEMENT
As
provided herein, the Trust Administrator shall elect that the Trust Fund
(exclusive of the Interest Rate Cap Accounts, the Interest Rate Cap Agreements
and the Basis Risk Reserve Fund) be treated for federal income tax purposes
as
comprising two real estate mortgage investment conduits (each a “REMIC”
or,
in
the alternative, “Subsidiary
REMIC”
and
“Master
REMIC”).
Each
Class of Certificates, other than the Class AR Certificates and exclusive of
the
right to receive Basis Risk Shortfalls in the case of each Certificate other
than the Class X, Class P or Class AR Certificates, represents ownership of
a
regular interest in the Master REMIC for purposes of the REMIC Provisions.
The
Class AR Certificates represent ownership of the sole class of residual interest
in each REMIC for purposes of the REMIC Provisions. The Master REMIC shall
hold
as its assets the several classes of uncertificated Lower Tier Interests in
the
Subsidiary REMIC, other than the Class LT1-R Interest, and each such Lower
Tier
Interest is hereby designated as a regular interest in the Subsidiary REMIC.
In
addition, the Master REMIC shall hold as an asset the Class P Reserve Fund.
The
Subsidiary REMIC shall hold as its assets the Mortgage Loans, and all
collections and accounts related thereto. The startup day for each REMIC created
hereby for purposes of the REMIC Provisions is the Closing Date. In addition,
for purposes of the REMIC Provisions, the latest possible maturity date for
each
regular interest in each REMIC created hereby is the Distribution Date following
the third anniversary of the scheduled maturity date of the Mortgage Loan having
the latest scheduled maturity date as of the Cut-off Date.
Subsidiary
REMIC
The
following table sets forth (or describes) the class designation, interest rate,
and initial principal amount for each uncertificated REMIC interest in the
Subsidiary REMIC:
Subsidiary
REMIC Interest
|
Initial
Principal Balance
|
Interest
Rate
|
Corresponding
Class of Master REMIC Certificates
|
LT1-A1A
|
(2)
|
(1)
|
A-1-A
|
LT1-A1B
|
(2)
|
(1)
|
A-1-B
|
5
LT1-A2
|
(2)
|
(1)
|
A-2
|
LT1-A3
|
(2)
|
(1)
|
A-3
|
LT1-A4
|
(2)
|
(1)
|
A-4
|
LT1-A5
|
(2)
|
(1)
|
A-5
|
LT1-A6
|
(2)
|
(1)
|
A-6
|
LT1-A7
|
(2)
|
(1)
|
A-7
|
LT1-M1
|
(2)
|
(1)
|
M-1
|
LT1-M2
|
(2)
|
(1)
|
M-2
|
LT1-M3
|
(2)
|
(1)
|
M-3
|
LT1-M4
|
(2)
|
(1)
|
M-4
|
LT1-Q
|
(3)
|
(1)
|
N/A
|
LT1-R
|
(4)
|
(4)
|
N/A
|
________________
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Interests shall be the Net Funds
Cap.
|
(2)
|
This
interest shall have an initial class principal balance equal to one-half
of the initial Class Principal Balance of its Corresponding Class
of
Certificates.
|
(3)
|
This
interest shall have an initial class principal balance equal to the
excess
of (i) the Aggregate Loan Balance as of the Cut-off Date, over (ii)
the
aggregate initial class principal balance of each other regular interest
in the Subsidiary REMIC.
|
(4)
|
The
Class LT1-R Interest is the sole class of residual interest in the
Subsidiary REMIC. It does not have an interest rate or a principal
balance. The Class AR Certificate represents beneficial ownership
interest
of the Class LT1-R Interest.
|
On
each
Distribution Date, interest shall be distributed on the Lower Tier Interests
in
the Subsidiary REMIC based on the above-described interest rates,
provided,
however,
that
interest that accrues on the Class LT1-Q Interest shall be deferred in an amount
equal to one-half of the increase, if any, in the Overcollateralization Amount
for such Distribution Date. Any interest so deferred shall itself bear interest
at the interest rate for the Class LT1-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the other
Lower Tier Interests in the Subsidiary REMIC having a principal balance in
the
manner described under priority (a) below.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the Lower Tier Interests in the Subsidiary REMIC in the
following order of priority:
6
(a) First,
to
the Class LT1-A1A, Class LT1-A1B, Class LT1-A2, Class LT1-A3, Class LT1-A4,
Class LT1-A5, Class LT1-A6, Class LT1-A7, Class LT1-M1, Class LT1-M2, Class
LT1-M3 and Class LT1-M4 Interests until the principal balance of each such
Lower
Tier Interest equals one-half of the Class Principal Balance of the
Corresponding Class of Certificates immediately after such Distribution Date;
and
(b) Second,
to the Class LT1-Q Interest, any remaining amounts.
On
each
distribution Date, Prepayment Premiums shall be distributed to the Class LT1-Q
Interest.
Master
REMIC
Master
REMIC
Class
Designation
|
Initial
Class
Principal
or Class
Notional
Amount
|
Pass-Through
Rate
|
Minimum
Denominations
|
Integral
Multiples
in
Excess of
Minimum
Denominations
|
Class
A-1-A Certificates
|
$58,000,000
|
6.080%(1)
|
$25,000
|
$1
|
Class
A-1-B Certificates
|
$96,573,000
|
Variable
(2)
|
$25,000
|
$1
|
Class
A-2 Certificates
|
$55,573,000
|
Variable
(3)
|
$25,000
|
$1
|
Class
A-3 Certificates
|
$55,149,000
|
Variable
(4)
|
$25,000
|
$1
|
Class
A-4 Certificates
|
$30,120,000
|
6.160%(1)
|
$25,000
|
$1
|
Class
A-5 Certificates
|
$29,825,900
|
6.330%(1)
|
$25,000
|
$1
|
Class
A-6 Certificates
|
$57,395,000
|
5.970%(1)
|
$25,000
|
$1
|
Class
A-7 Certificates
|
$13,392,000
|
6.160%(1)
|
$25,000
|
$1
|
Class
M-1 Certificates
|
$10,686,000
|
6.160%(1)
|
$25,000
|
$1
|
Class
M-2 Certificates
|
$6,915,000
|
6.440%(1)
|
$25,000
|
$1
|
Class
M-3 Certificates
|
$3,353,000
|
6.750%(1)
|
$25,000
|
$1
|
Class
M-4 Certificates
|
$2,095,000
|
6.750%(1)
|
$25,000
|
$1
|
Class
P Certificates
|
$50
|
0.00%
|
10%
|
1%
|
Class
AR Certificates
|
$100
|
0.00%
|
20%
|
20%
|
Class
X Certificates (2)
|
Notional
(2)
|
0.00%
|
10%
|
1%
|
(1)
|
These
Certificates are subject to a limitation on their Pass-Through Rates
equal
to the Net Funds Cap. After the first possible Optional Termination
Date
for the Mortgage Loans, the per annum Pass-Through Rate on these
Certificates will increase by 0.50%, per annum, subject to the Net
Funds
Cap.
|
(2)
|
The
initial Pass-Through Rate on the Class A-1-B Certificates is 5.430%
per
annum. On each Distribution Date after the first Distribution Date
and on
or prior to the first possible Optional Termination Date, the per
annum
Pass-Through Rate on these Certificates will be equal to the least
of (i)
the Certificate Index plus 0.10%, (ii) the Net Funds Cap and (iii)
11.00%
per annum. After the first possible Optional Termination Date, the
per
annum Pass-Through Rate on these Certificates will equal the least
of (i)
the Certificate Index plus 0.20%, (ii) the Net Funds Cap and (iii)
11.00%
per annum.
|
(3)
|
The
initial Pass-Through Rate on the Class A-2 Certificates is 5.480%
per
annum. On each Distribution Date after the first Distribution Date
and on
or prior to the first possible Optional Termination Date, the per
annum
Pass-Through Rate on these Certificates will be equal to the least
of (i)
the Certificate Index plus 0.15%, the Net Funds Cap and (iii) 11.00%
per
annum. After the first possible Optional Termination Date, the per
annum
Pass-Through Rate on these Certificates will equal the least of (i)
the
Certificate Index plus 0.30%, (ii) the Net Funds Cap and (iii) 11.00%
per
annum.
|
(4)
|
The
initial Pass-Through Rate on the Class A-3 Certificates is 5.530%
per
annum. On each Distribution Date after the first Distribution Date
and on
or prior to the first possible Optional Termination Date, the per
annum
Pass-Through Rate on these Certificates will be equal to the least
of (i)
the Certificate Index plus 0.20%, (ii) the Net Funds Cap and (iii)
11.00%
per annum. After the first possible Optional Termination Date, the
per
annum Pass-Through Rate on these Certificates will equal the least
of (i)
the Certificate Index plus 0.40%, (ii) the Net Funds Cap and (iii)
11.00%
per annum.
|
7
(5)
|
The
Class P Certificates will be entitled to all Prepayment Premiums
received
on the Mortgage Loans.
|
(6)
|
The
Class AR Certificates shall represent beneficial ownership of the
Class
LT1-R Interest and the residual interest in the Master
REMIC.
|
(7)
|
The
Class X Certificates shall represent ownership of a regular interest
in
the Master REMIC (the “Class X Interest”). The Class X Interest shall have
an initial principal balance of $296.73. The Class X Interest shall
also
comprise a notional component, which has a notional balance that
shall at
all times equal the aggregate Class Principal Balance of the Lower
Tier
Interest in the Subsidiary REMIC. For each Distribution Date (and
the
related Accrual Period), this notional component shall bear interest
at a
per annum rate equal to the excess, if any, of (i) the weighted average
of
the interest rates on the Lower Tier Interests in the Subsidiary
REMIC,
over (ii) the Adjusted Subsidiary REMIC WAC. In addition, for federal
income tax purposes, the Class X Certificates shall represent (i)
ownership of the Interest Rate Cap Agreements, Interest Rate Cap
Accounts
and the Basis Risk Reserve Fund.
|
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Master REMIC as cash flow on a REMIC regular
interest, without creating any shortfall—actual or potential (other than for
credit losses) to any REMIC regular interest. To the extent that the structure
is believed to diverge from such intention the Trust Administrator shall resolve
ambiguities to accomplish such result and shall to the extent necessary rectify
any drafting errors or seek clarification to the structure without
Certificateholder approval (but with guidance of counsel) to accomplish such
intention.
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
|
The
Class A-1-A, Class A-1-B, Class A-2, Class A-3, Class A-4, Class
A-5,
Class A-6, Class A-7 and Class AR Certificates.
|
|
Class
M Certificates
|
The
Class M-1, Class M-2, Class M-3 and Class M-4
Certificates.
|
|
ERISA-Restricted
Certificates
|
Residual
Certificates, Private Certificates and any Certificates that do not
satisfy the applicable ratings requirement under the Underwriter’s
Exemption.
|
|
Floating
Rate Certificates
|
The
Class A-1-B, Class A-2 and Class A-3
Certificates.
|
8
Senior
Certificates
|
The
Class A-1-A, Class A-1-B, Class A-2, Class A-3, Class A-4, Class
A-5,
Class A-6, Class A-7 and Class AR Certificates.
|
|
Subordinate
Certificates
|
The
Class M-1, Class M-2, Class M-3, Class M-4 and Class X
Certificates.
|
|
LIBOR
Certificates
|
The
Floating Rate Certificates.
|
|
Lockout
Certificates
|
The
Class A-6 Certificates.
|
|
Notional
Amount Certificates
|
The
Class X Certificates.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
|
Physical
Certificates
|
The
Private Certificates.
|
|
Private
Certificates
|
The
Residual Certificates, the Class P and Class X
Certificates.
|
|
Rating
Agencies
|
S&P
and Xxxxx’x.
|
|
Regular
Certificates
|
All
Classes of Certificates other than the Residual
Certificates.
|
|
Residual
Certificates
|
The
Class AR Certificates.
|
All
covenants and agreements made by the Depositor herein are for the benefit and
security of the Certificateholders. The Depositor is entering into this
Agreement, and the Trustee is accepting the trusts created hereby and thereby,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged. The principal balance of the Mortgage Loans as of the
Cut-off Date is $419,077,296.73.
The
parties hereto intend to effect an absolute sale and assignment of the Mortgage
Loans to the Trustee for the benefit of Certificateholders under this Agreement.
However, each of the Depositor and the Seller shall hereunder absolutely assign
and, as a precautionary matter grant a security interest, in and to its rights,
if any, in the related Mortgage Loans to the Trustee on behalf of
Certificateholders to ensure that the interest of the Certificateholders
hereunder in the Mortgage Loans is fully protected.
WITNESSETH
THAT:
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Master Servicer, the Servicer, the Trustee and the Trust
Administrator agree as follows:
9
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 of prudent
mortgage lending institutions that service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located.
Accountant’s
Attestation:
The
attestation required from an Accountant pursuant to Section 14.08.
Accrual
Period:
For any
interest-bearing Class of Certificates (other than the LIBOR Certificates)
and
for each Class of Lower Tier Interests, and any Distribution Date, the calendar
month immediately preceding that Distribution Date. For any class of LIBOR
Certificates, the period from and including the Distribution Date immediately
preceding that Distribution Date (or the Closing Date, in the case of the first
Accrual Period) to and including the day immediately preceding that Distribution
Date.
Additional
Disclosure Notification:
As
defined in Section 14.02.
Additional
Form 10-D Disclosure:
As
defined in Section 14.02.
Additional
Form 10-K Disclosure:
As
defined in Section 14.03.
Additional
Servicer:
means
each affiliate of each Servicer that Services any of the Mortgage Loans and
each
Person who is not an affiliate of any Servicer, who Services 10% or more of
the
Mortgage Loans (measured by aggregate Stated Principal Balance of the Mortgage
Loans, annually at the commencement of the calendar year prior to the year
in
which an Item 1123 Certification is required to be delivered). For clarification
purposes, the Master Servicer and the Trust Administrator are Additional
Servicers.
Adjusted
Subsidiary REMIC WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to (i)
two,
multiplied by (ii) the weighted average of the interest rates for such
Distribution Date for the Class LT1-A1A, Class LT1-A1B, Class LT1-A2, Class
LT1-A3, Class LT1-A4, Class LT1-A5, Class LT1-A6, Class LT1-A7, Class LT1-M1,
Class LT1-M2, Class LT1-M3, Class LT1-M4 and Class LT1-Q Interests, weighted
in
proportion to their Class Principal Balances as of the beginning of the related
Accrual Period and computed by subjecting the rate on the Class LT1-Q Interest
to a cap of 0.00%, and by subjecting the rate on each of the Class LT1-A1A,
Class LT1-A1B, Class LT1-A2, Class LT1-A3, Class LT1-A4, Class LT1-A5, Class
LT1-A6, Class LT1-A7, Class LT1-M1, Class LT1-M2, Class LT1-M3 and Class LT1-M4
Interests to a cap that corresponds to the Pass-Through Rate for the
Corresponding Class of Certificates; provided,
however,
that
for each Class of LIBOR Certificates, the Pass-Through Rate shall be multiplied
by an amount equal to (a) the actual number of days in the Accrual Period,
divided by (b) 30.
10
Advance:
With
respect to any Mortgage Loan, the payment required to be made by the Servicer
or
the Master Servicer, as applicable, with respect to any Distribution Date
pursuant to the Servicing Agreement or this Agreement.
Adverse
REMIC Event:
As
defined in Section 2.07(f).
Aggregate
Loan Balance:
As of
any date of determination, the aggregate Stated Principal Balance of the
Mortgage Loans as of (except as otherwise provided herein) the last day of
the
related Collection Period.
Agreement:
This
Pooling and Servicing Agreement and all amendments or supplements
hereto.
Ancillary
Income:
All
income derived from the Mortgage Loans, other than Servicing Fees, including
but
not limited to late charges, Prepayment Penalties, fees received with respect
to
checks or bank drafts returned by the related bank for non-sufficient funds,
assumption fees, optional insurance administrative fees and all other incidental
fees and charges.
Applied
Loss Amount:
As to
any Distribution Date, an amount equal to the excess,
if any
of (i) the aggregate Class Principal Balance of the Certificates after giving
effect to (A) all Realized Losses incurred with respect to Mortgage Loans during
the Collection Period for such Distribution Date, (B) payments of principal
on
such Distribution Date and (C) any additions to the Class Principal Balance
of
the Certificates on such Distribution Date pursuant to Section 4.03(a)
over
(ii) the
Aggregate Loan Balance for such Distribution Date.
Appraised
Value:
The
appraised value of the Mortgaged Property based upon the appraisal made for
the
originator at the time of the origination of the related Mortgage Loan or the
sales price of the Mortgaged Property at the time of such origination, whichever
is less or, with respect to any Mortgage Loan that represents a refinancing,
the
appraised value of the Mortgaged Property based upon the appraisal made at
the
time of such refinancing.
Assessment
of Compliance:
The
certification required pursuant to Section 14.07.
Assignment
and Assumption Agreement:
That
certain assignment and assumption agreement dated as of August 1, 2006, by
and
between DLJ Mortgage Capital, Inc., as assignor and the Depositor, as assignee,
relating to the Mortgage Loans.
Bankruptcy
Code:
The
United States Bankruptcy Code, as amended from time to time (11 U.S.C. §§ 101 et
seq.).
Basis
Risk Reserve Fund:
The
separate Eligible Account created and initially maintained by the Trust
Administrator pursuant to Section 4.07 in the name of the Trust Administrator
for the benefit of the Certificateholders and designated “Xxxxx Fargo Bank,
N.A., as Trust Administrator, in trust for registered holders of Credit Suisse
First Boston Mortgage Securities Corp., TBW Mortgage-Backed Trust Series 2006-4,
TBW Mortgage-Backed Pass-Through Certificates, Series 2006-4.” The Basis Risk
Reserve Fund shall not be part of any REMIC. Funds in the Basis Risk Reserve
Fund shall be held in trust for the Certificateholders for the uses and purposes
set forth in this Agreement.
11
Basis
Risk Shortfall:
For any
Class of Offered Certificates (other than the Class AR Certificates) and any
Distribution Date, the sum
of (i)
the excess,
if any,
of the related Current Interest calculated on the basis of the applicable
Pass-Through Rate of such Class of Certificates without regard to the
application of the Net Funds Cap over
the
related Current Interest for that Distribution Date; (ii) any Basis Risk
Shortfall remaining unpaid from prior Distribution Dates; and (iii) interest
accrued during the related Accrual Period on the amount in clause (ii)
calculated at a per annum rate equal to the applicable Pass-Through Rate of
such
Class of Certificates without regard to the application of the Net Funds
Cap.
Beneficial
Holder:
A
Person holding a beneficial interest in any Certificate through a Participant
or
an Indirect Participant or a Person holding a beneficial interest in any
Definitive Certificate.
Book-Entry
Certificates:
As
specified in the Preliminary Statement.
Book-Entry
Form:
Any
Certificate held through the facilities of the Depository.
Business
Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in New York or the state in which the office of the Master Servicer
or the Servicer or the Corporate Trust Office of the Trustee or Trust
Administrator are located are authorized or obligated by law or executive order
to be closed.
Carryforward
Interest:
For any
Class of Offered Certificates and any Distribution Date, the sum of (1) the
amount, if any, by which (x) the sum of (A) Current Interest for such Class
for
the immediately preceding Distribution Date and (B) any unpaid Carryforward
Interest from the immediately preceding Distribution Date exceeds (y) the amount
paid in respect of interest on such Class on such immediately preceding
Distribution Date, and (2) interest on such amount for the related Accrual
Period at the applicable Pass-Through Rate for such Distribution
Date.
Certificate:
Any
Certificates executed and authenticated by the Trust Administrator on behalf
of
the Trustee for the benefit of the Certificateholders in substantially the
form
or forms attached as Exhibits
A
through
H
hereto.
Certificate
Account:
The
separate Eligible Account created and maintained with the Trust Administrator,
or any other bank or trust company acceptable to the Rating Agencies that is
incorporated under the laws of the United States or any state thereof pursuant
to Section 3.04, which account shall bear a designation clearly indicating
that
the funds deposited therein are held in trust for the benefit of the Trust
Administrator, as agent for the Trustee, on behalf of the Certificateholders
or
any other account serving a similar function acceptable to the Rating Agencies.
Funds in the Certificate Account may (i) be held uninvested without liability
for interest or compensation thereon or (ii) be invested at the direction of
the
Trust Administrator in Eligible Investments and reinvestment earnings thereon
(net of investment losses) shall be paid to the Trust Administrator. Funds
deposited in the Certificate Account (exclusive of the amounts permitted to
be
withdrawn pursuant to Section 3.06(a)) shall be held in trust for the
Certificateholders.
12
Certificate
Balance:
With
respect to any Certificate 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
(a) minus
all
distributions of principal previously made or allocated with respect thereto
and, in the case of any Class of Subordinate Certificates, reduced by any
Applied Loss Amounts allocated to such Class prior Distribution Dates in
accordance with Section 4.02;
(b) plus,
the
amount of any increase to the Certificate Balance of such Certificate pursuant
to Section 4.03.
Certificate
Index:
With
respect to each Distribution Date and the LIBOR Certificates, the rate for
one-month United States dollar deposits quoted on Telerate Page 3750 as of
11:00
A.M., London time, on the related Interest Determination Date relating to each
Class of LIBOR Certificates. If such rate does not appear on such page (or
such
other page as may replace that page on that service, or if such service is
no
longer offered, such other service for displaying LIBOR or comparable rates
as
may be reasonably selected by the Trust Administrator after consultation with
DLJMC), the rate will be the Reference Bank Rate. If no such quotations can
be
obtained and no Reference Bank Rate is available, the Certificate Index will
be
the Certificate Index applicable to the preceding Distribution Date. On the
Interest Determination Date immediately preceding each Distribution Date, the
Trust Administrator shall determine the Certificate Index for the Accrual Period
commencing on such Distribution Date and inform the Master Servicer of such
rate.
Certificate
Register:
The
register maintained pursuant to Section 6.02(a) hereof.
Certificateholder
or Holder:
The
Person in whose name a Certificate is registered in the Certificate
Register.
Certification
Parties:
As
defined in Section 14.09.
Certifying
Person:
As
defined in Section 14.09.
Class:
All
Certificates bearing the same Class designation as set forth in the Preliminary
Statement.
Class
A Certificates:
As set
forth in the Preliminary Statement.
Class
A-2 Interest Rate Cap Account:
The
separate Eligible Account created and initially maintained by the Trust
Administrator pursuant to Section 4.08 in the name of the Trust Administrator
for the benefit of the Certificateholders and designated “Xxxxx Fargo Bank,
N.A., as Trust Administrator, in trust for registered holders of TBW
Mortgage-Backed Trust Series 2006-4, TBW Mortgage-Backed Pass-Through
Certificates, Series 2006-4.” Funds in the Class A-2 Interest Rate Cap Account
shall be held in trust for the Certificateholders for the uses and purposes
set
forth in this Agreement. The Class A-2 Interest Rate Cap Account will not be
an
asset of any REMIC.
13
Class
A-2 Interest Rate Cap Agreement: The
interest rate cap agreement relating primarily to the Class A-2 Certificates
consisting of the ISDA Master Agreement (Multicurrency Cross-Border) and a
schedule dated as of the Closing Date and the related confirmation thereto,
between the Trust Administrator, on behalf of the Trust and the Interest Rate
Cap Agreement Counterparty, which supplements, forms a part of, is subject
to,
and is governed by such ISDA Master Agreement, as such agreement may be amended
and supplemented in accordance with its terms.
Class
A-3 Interest Rate Cap Account:
The
separate Eligible Account created and initially maintained by the Trust
Administrator pursuant to Section 4.08 in the name of the Trust Administrator
for the benefit of the Certificateholders and designated “Xxxxx Fargo Bank,
N.A., as Trust Administrator, in trust for registered holders of TBW
Mortgage-Backed Trust Series 2006-4, TBW Mortgage-Backed Pass-Through
Certificates, Series 2006-4.” Funds in the Class A-3 Interest Rate Cap Account
shall be held in trust for the Certificateholders for the uses and purposes
set
forth in this Agreement. The Class A-3 Interest Rate Cap Account will not be
an
asset of any REMIC.
Class
A-3 Interest Rate Cap Agreement: The
interest rate cap agreement relating primarily to the Class A-3 Certificates
consisting of the ISDA Master Agreement (Multicurrency Cross-Border) and a
schedule dated as of the Closing Date and the related confirmation thereto,
between the Trust Administrator, on behalf of the Trust and the Interest Rate
Cap Agreement Counterparty, which supplements, forms a part of, is subject
to,
and is governed by such ISDA Master Agreement, as such agreement may be amended
and supplemented in accordance with its terms.
Class
A-6 Available Principal Amount:
With
respect to any Distribution Date, an amount equal to (i) if such Distribution
Date is prior to the Stepdown Date or occurs when a Trigger Event is in effect,
the Principal Payment Amount for that Distribution Date and (ii) if such
Distribution Date is on or after the Stepdown Date and a Trigger Event is not
in
effect, the Senior Principal Payment Amount for that Distribution
Date.
Class
A-6 Calculation Percentage:
With
respect to any Distribution Date, a fraction expressed as a percentage, the
numerator of which is the aggregate Class Principal Balance of the Class A-6
Certificates and the denominator of which is the aggregate Class Principal
Balance of the Senior Certificates (other than the Class A-7 Certificates),
in
each case prior to giving effect to the distributions of principal on that
Distribution Date.
Class
A-6 Lockout Distribution Amount:
With
respect to any Distribution Date, an amount equal to the product
of (1)
the applicable Class A-6 Lockout Percentage for that Distribution Date, (2)
the
Class A-6 Calculation Percentage for that Distribution Date and (3) the Class
A-6 Available Principal Amount for that Distribution Date; provided,
however,
that in
no event shall the Class A-6 Lockout Distribution Amount exceed (a) the
outstanding aggregate Class Principal Balance of the Class A-6 Certificates
or
(b) the product
of (i)
the Class A-6 Calculation Percentage and (ii) the Class A-6 Available Principal
Amount for such Distribution Date.
14
Class
A-6 Lockout Percentage:
With
respect to any Distribution Date, the applicable percentage set forth below
for
that Distribution Date:
Range
of Distribution Dates
|
Class
A-6 Lockout Percentage
|
September
2006 - August 2009
|
0%
|
September
2009 - August 2011
|
45%
|
September
2011 - August 2012
|
80%
|
September
2012 - August 2013
|
100%
|
September
2013 and thereafter
|
300%
|
Class
A-7 Senior Percentage:
For any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the Class Principal Balance of the Class A-7 Certificates on that
Distribution Date and the denominator of which is the aggregate Class Principal
Balance of the remaining Senior Certificates, in each case prior to giving
effect to distributions pursuant to Section 4.01(b) on such Distribution
Date.
Class
A-7 Senior Payment Amount:
For any
Distribution Date, the Class A-7 Senior Percentage of the applicable amount
to
be distributed on each Distribution Date pursuant to Section 4.01(b)(I)(B),
4.01(b)(II)(B) or 4.01(c)(ii)(a).
Class
M-1 Principal Payment Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger Event
has not occurred with respect to such Distribution Date, the excess,
if any,
of (x) the sum
of (i)
the aggregate Class Principal Balance of the Senior Certificates after giving
effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class M-1 Certificates immediately prior to such Distribution
Date over
(y) the
lesser
of (A)
the product
of (i)
92.10% and (ii) the Aggregate Loan Balance for such Distribution Date and (B)
the excess,
if any,
of (i) the Aggregate Loan Balance for such Distribution Date over
(ii)
0.50% of the Aggregate Loan Balance as of the Cut-off Date.
Class
M-2 Principal Payment Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger Event
has not occurred with respect to such Distribution Date, the excess,
if any,
of (x) the sum
of (i)
the aggregate Class Principal Balances of the Senior Certificates and the Class
M-1 Certificates, in each case after giving effect to payments on such
Distribution Date and (ii) the Class Principal Balance of the Class M-2
Certificates immediately prior to such Distribution Date over
(y) the
lesser
of (A)
the product
of (i)
95.40% and (ii) the Aggregate Loan Balance for such Distribution Date and (B)
the excess,
if any,
of (i) the Aggregate Loan Balance for such Distribution Date over
(ii)
0.50% of the Aggregate Loan Balance as of the Cut-off Date.
Class
M-3 Principal Payment Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger Event
has not occurred with respect to such Distribution Date, will be the amount,
if
any, by which (x) the sum of (i) the aggregate Class Principal Balances of
the
Senior Certificates and the Class Principal Balance of the Class M-1
Certificates and Class M-2 Certificates, in each case, after giving effect
to
payments on such Distribution Date and (ii) the Class Principal Balance of
the
Class M-3 Certificates immediately prior to such Distribution Date exceeds
(y)
the lesser of (A) the product of (i) 97.00% and (ii) the Aggregate Loan Balance
for such Distribution Date and (B) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Balance as of the Cut-off Date.
15
Class
M-4 Principal Payment Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger Event
has not occurred with respect to such Distribution Date, the excess,
if any,
of (x) the sum
of (i)
the aggregate Class Principal Balance of the Senior Certificates, the Class
M-1
Certificates, Class M-2 Certificates and Class M-3 Certificates, in each case
after giving effect to payments on such Distribution Date and (ii) the Class
Principal Balance of the Class M-4 Certificates immediately prior to such
Distribution Date over
(y) the
lesser
of (A)
the product
of (i)
98.00% and (ii) the Aggregate Loan Balance for such Distribution Date and (B)
the excess,
if any,
of (i) the Aggregate Loan Balance for such Distribution Date over
(ii)
0.50% of the Aggregate Loan Balance as of the Cut-off Date.
Class
P Certificates:
As set
forth in the Preliminary Statement.
Class
P Reserve Fund:
The
Eligible Account established pursuant to Section 4.01(e).
Class
Principal Balance:
With
respect to any Class of Certificates, other than the Notional Amount
Certificates, and as to any date of determination, the aggregate of the
Certificate Balances of all Certificates of such Class as of such
date.
Class X
Distributable Amount:
With
respect to any Distribution Date, the excess
of
(i) the sum
of
(a) the amounts distributable on the Class X Interest on such Distribution
Date as described in the Preliminary Statement and (b) amounts so
distributable in all prior Accrual Periods over
(ii) the sum
of (a)
amounts distributed with respect to the Class X Certificates pursuant to Section
4.01(c)(xiii) on prior Distribution Dates (but not including any amounts
distributed from the Basis Risk Reserve Fund pursuant to Section 4.07 (b) or
(c)
or from Interest Rate Cap Accounts pursuant to Section 4.08(b), and (b) any
amounts deposited into the Basis Risk Reserve Fund on such Distribution Date
or
any prior Distribution Date.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended, which initially shall be
DTC.
Closing
Date:
August
30, 2006.
Code:
The
Internal Revenue Code of 1986, as amended.
Collection
Period:
With
respect to each Distribution Date, the period commencing on the second day
of
the month preceding the month of the Distribution Date and ending on the first
day of the month of the Distribution Date.
Commission:
The
U.S. Securities and Exchange Commission.
Compensating
Interest Payment:
For any
Distribution Date and the Master Servicer, the Compensating Interest Payment
shall be equal to the excess
of (i)
the Compensating Interest Payment required to be remitted by the Servicer under
the Servicing Agreement for such Distribution Date over
(ii) the
amount of the Compensating Interest Payment actually remitted by the Servicer
for such Distribution Date.
16
Controlling
Person:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
Cooperative
Corporation:
With
respect to any Cooperative Loan, the cooperative apartment corporation that
holds legal title to the related Cooperative Property and grants occupancy
rights to units therein to stockholders through Proprietary Leases or similar
arrangements.
Cooperative
Loan:
A
Mortgage Loan that is secured by a first lien on and a perfected security
interest in Cooperative Shares and the related Proprietary Lease granting
exclusive rights to occupy the related Cooperative Unit in the building owned
by
the related Cooperative Corporation.
Cooperative
Property:
With
respect to any Cooperative Loan, all real property and improvements thereto
and
rights therein and thereto owned by a Cooperative Corporation including without
limitation the land, separate dwelling units and all common
elements.
Cooperative
Shares:
With
respect to any Cooperative Loan, the shares of stock issued by a Cooperative
Corporation and allocated to a Cooperative Unit and represented by stock
certificates.
Cooperative
Unit:
With
respect to any Cooperative Loan, a specific unit in a Cooperative
Property.
Corporate
Trust Office:
With
respect to the Trustee, the designated office of the Trustee at which at any
particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at 00 Xxxxxxxxxx Xxxxxx, Structured Finance EP-MN-WS3D,
Xx.
Xxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust—Structured Finance, TBW
2006-4. With respect to the Trust Administrator, the designated office of the
Trust Administrator at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: TBW 2006-4, except for purposes of Section
6.06 and certificate transfer purposes, such term shall mean the office or
agency of the Trust Administrator located at Xxxxx Fargo Bank, National
Association, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: TBW 2006-4.
Corresponding
Classes of Certificates:
With
respect to each Lower Tier Interest, any Class of Certificates appearing
opposite such Lower Tier Interest in the Preliminary Statement.
Current
Interest:
For any
Class of Offered Certificates (other than the Class AR Certificates) and any
Distribution Date, the amount of interest accruing at the applicable
Pass-Through Rate on the related Class Principal Balance of such Class during
the related Accrual Period, provided
that if
and to the extent that on any Distribution Date the Interest Remittance Amount
is less than the aggregate distributions required pursuant to Section 4.01(a),
without regard to this proviso, as a result of Interest Shortfalls, then the
Current Interest for each Class for such Distribution Date shall be reduced
by
such Interest Shortfalls, pro
rata
in
proportion to the amount of Current Interest for each Class without regard
to
this proviso.
17
Curtailment:
Any
payment of principal on a Mortgage Loan, made by or on behalf of the related
Mortgagor, other than a Scheduled Payment, a prepaid Scheduled Payment or a
Payoff, which is applied to reduce the outstanding Stated Principal Balance
of
the Mortgage Loan.
Custodial
Account:
The
accounts established and maintained by the Servicer in accordance with the
Servicing Agreement.
Custodial
Agreement:
The
custodial agreement dated as of August 1, 2006 among the Trustee, the Trust
Administrator and the Custodian, with respect to the Mortgage
Loans.
Custodian:
Colonial Bank, N.A., or its successor in interest under the Custodial Agreement,
acting as agent on behalf of the Trustee and compensated by the Trust
Administrator or as otherwise specified therein.
Cut-off
Date:
August
1, 2006.
Cut-off
Date Pool Principal Balance:
$419,077,296.73.
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
Remittance Date:
With
respect to any Distribution Date, the 10th calendar day of the month in which
such Distribution Date occurs, or if such 10th day is not a Business Day, the
Business Day immediately following such 10th day.
Deferred
Amounts:
For any
Class of Subordinate Certificates and any Distribution Date, the excess
of
(x) the aggregate Applied Loss Amount previously applied in reduction of
the Class Principal Balance thereof over
(y) the sum
of (i)
the aggregate amount previously paid in reimbursement thereof and (ii) any
additions to the Class Principal Balance pursuant to Section 4.03 on such
Distribution Date or any previous Distribution Date. Any payment of Deferred
Amounts pursuant to Section 4.01(c) shall not result in a reduction of the
Class
Principal Balance of the related Class Certificate.
Definitive
Certificate:
As
defined in Section 6.07.
Deleted
Mortgage Loan:
As
defined in Section 2.03(c).
Delinquency
Rate:
For any
month, the fraction, expressed as a percentage, the numerator of which is the
aggregate outstanding principal balance of all Mortgage Loans 60 or more days
delinquent (including all foreclosures, bankruptcies and REO Properties) as
of
the close of business on the last day of such month, and the denominator of
which is the Aggregate Loan Balance as of the close of business on the last
day
of such month.
18
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Certificate Balance of this Certificate” or the “Initial Notional
Amount of this Certificate” or, if neither of the foregoing, the Percentage
Interest appearing on the face thereof.
Depositor:
Credit
Suisse First Boston Mortgage Securities Corp., a Delaware corporation, or its
successor in interest.
Depository
Agreement:
The
Letter of Representation dated as of the Closing Date by and among DTC, the
Depositor and the Trust Administrator for the benefit of the
Trustee.
Determination
Date:
With
respect to each Distribution Date, the 10th
day of
the calendar month in which such Distribution Date occurs or, if such
10th
day is
not a Business Day, the Business Day immediately succeeding such Business
Day.
Disqualified
Organization:
Any
organization defined as a “disqualified organization” under Section 860E(e)(5)
of the Code, which includes any of the following: (i) the United States, any
State or political subdivision thereof, any possession of the United States,
or
any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject
to
tax and, except for the FHLMC, a majority of its board of directors is not
selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers’ cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed
by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code
on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an “electing
large partnership” within the meaning of Section 775 of the Code, and (vi) any
other Person so designated by the Trust Administrator based upon an Opinion
of
Counsel that the holding of an Ownership Interest in a Residual Certificate
by
such Person may cause any REMIC formed hereby or any Person having an Ownership
Interest in any Class of Certificates (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise
be
imposed but for the Transfer of an Ownership Interest in a Residual Certificate
to such Person. The terms “United States”, “State” and “international
organization” shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
Distribution
Date:
The
25th
day of
any month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in September 2006.
DLJMC:
DLJ
Mortgage Capital, Inc., a Delaware corporation, and its successors and
assigns.
DTC:
The
Depository Trust Company.
19
Due
Date:
With
respect to each Mortgage Loan and any Distribution Date, the date on which
Scheduled Payments on such Mortgage Loan are due which is either the first
day
of the month of such Distribution Date, or if Scheduled Payments on such
Mortgage Loan are due on a day other than the first day of the month, the date
in the calendar month immediately preceding the Distribution Date on which
such
Scheduled Payments are due, exclusive of any days of grace.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account or accounts the deposits in which are insured by the FDIC to
the
limits established by such corporation, provided
that any
such deposits not so insured shall be maintained in an account at a depository
institution or trust company whose commercial paper or other short term debt
obligations (or, in the case of a depository institution or trust company which
is the principal subsidiary of a holding company, the commercial paper or other
short term debt obligations of such holding company) have been rated by each
Rating Agency in its highest short-term rating category, or (iii) a segregated
trust account or accounts (which shall be a “special deposit account”)
maintained with the Trustee, the Trust Administrator or any other federal or
state chartered depository institution or trust company, acting in its fiduciary
capacity, in a manner acceptable to the Trustee, the Trust Administrator and
the
Rating Agencies. Eligible Accounts may bear interest.
Eligible
Institution:
An
institution having the highest short-term debt rating, and one of the two
highest long-term debt ratings of the Rating Agencies or the approval of the
Rating Agencies.
Eligible
Investments:
Any one
or more of the obligations and securities listed below:
1.
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direct
obligations of, and obligations fully guaranteed by, the United States
of
America, or any agency or instrumentality of the United States of
America
the obligations of which are backed by the full faith and credit
of the
United States of America; or obligations fully guaranteed by, the
United
States of America; the FHLMC, FNMA, the Federal Home Loan Banks or
any
agency or instrumentality of the United States of America rated AA
(or the
equivalent) or higher by the Rating
Agencies;
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2.
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federal
funds, demand and time deposits in, certificates of deposits of,
or
bankers’ acceptances issued by, any depository institution or trust
company incorporated or organized under the laws of the United States
of
America or any state thereof and subject to supervision and examination
by
federal and/or state banking authorities, so long as at the time
of such
investment or contractual commitment providing for such investment
the
commercial paper or other short-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company,
the commercial paper or other short-term debt obligations of such
holding
company) are rated in one of two of the highest ratings by each of
the
Rating Agencies, and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company,
the long-term debt obligations of such holding company) are rated
in one
of two of the highest ratings, by each of the Rating
Agencies;
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20
3.
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repurchase
obligations with a term not to exceed 30 days with respect to any
security
described in clause (i) above and entered into with a depository
institution or trust company (acting as a principal) rated “A-1+” by the
Rating Agencies; provided,
however,
that collateral transferred pursuant to such repurchase obligation
must be
of the type described in clause (i) above and must (A) be valued
daily at
current market price plus accrued interest, (B) pursuant to such
valuation, be equal, at all times, to 105% of the cash transferred
by the
Trustee or the Trust Administrator in exchange for such collateral,
and
(C) be delivered to the Trustee or the Trust Administrator or, if
the
Trustee or the Trust Administrator, as applicable, is supplying the
collateral, an agent for the Trustee or the Trust Administrator,
in such a
manner as to accomplish perfection of a security interest in the
collateral by possession of certificated
securities;
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4.
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securities
bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any
state
thereof which has a long-term unsecured debt rating in the highest
available rating category of each of the Rating Agencies at the time
of
such investment;
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5.
|
commercial
paper having an original maturity of less than 365 days and issued
by an
institution having a short-term unsecured debt rating in the highest
available rating category of each of the Rating Agencies at the time
of
such investment;
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6.
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a
guaranteed investment contract approved by each of the Rating Agencies
and
issued by an insurance company or other corporation having a long-term
unsecured debt rating in the highest available rating category of
each of
the Rating Agencies at the time of such
investment;
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7.
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money
market funds (which may be 12b-1 funds as contemplated under the
rules
promulgated by the Securities and Exchange Commission under the Investment
Company Act of 1940) having ratings in the highest available rating
category of Xxxxx’x and one of the two highest available rating categories
of S&P at the time of such investment (any such money market funds
which provide for demand withdrawals being conclusively deemed to
satisfy
any maturity requirements for Eligible Investments set forth herein)
including money market funds of the Master Servicer, a Servicer,
the
Trustee or the Trust Administrator and any such funds that are managed
by
the Master Servicer, a Servicer, the Trustee or the Trust Administrator
or
their respective Affiliates or for the Master Servicer, a Servicer,
the
Trustee or the Trust Administrator or any Affiliate of such Person
acts as
advisor, as long as such money market funds satisfy the criteria
of this
subparagraph (vii); and
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21
8.
|
such
other investments the investment in which will not, as evidenced
by a
letter from each of the Rating Agencies, result in the downgrading
or
withdrawal of the Ratings of the
Certificates;
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provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
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 (without regard to the ratings requirements) of an Underwriter’s
Exemption.
ERISA-Restricted
Certificate:
As set
forth in the Preliminary Statement.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
mortgage insurance premiums, fire and hazard insurance premiums, and any other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage, applicable law or any other related document.
Event
of Default:
As
defined in Section 8.01 hereof.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Expense
Fee Rate:
As to
each Mortgage Loan, the sum of the related Servicing Fee Rate, the rate at
which
any lender paid primary mortgage guaranty insurance fee accrues, if applicable,
and the Qualified Substitute Mortgage Loan Excess Interest Rate, if
applicable.
Expense
Fees:
As to
each Mortgage Loan, the sum of the related Servicing Fee, any lender paid
primary mortgage guaranty insurance premium, if applicable, and any Qualified
Substitute Mortgage Loan Excess Interest, if applicable.
Fair
Credit Reporting Act:
The
Fair Credit Reporting Act of 1970, as amended.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
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.
22
Financing
Statement:
A
financing statement in the form of a UCC-1 or UCC-3, as applicable, filed
pursuant to the Uniform Commercial Code to perfect a security interest in the
Cooperative Shares and Pledge Instruments.
Fitch
Ratings:
Fitch,
Inc., or any successor thereto.
FNMA:
The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Form
8-K Disclosure Information:
As
defined in Section 14.04.
Independent:
When
used with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a Person
who
(A) is in fact independent of another specified Person and any affiliate of
such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person, (C) is
not
connected with such other Person or any affiliate of such other Person as an
officer, employee, promoter, underwriter, Trust Administrator, partner, director
or Person performing similar functions and (D) is not a member of the immediate
family of a Person defined in clause (B) or (C) above.
Indirect
Participants:
Entities, such as banks, brokers, dealers and trust companies, that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly.
Initial
Class Principal Balance:
As set
forth in the Preliminary Statement.
Insurance
Policy:
With
respect to any Mortgage Loan included in the Trust Fund, any Mortgage Guaranty
Insurance Policy, any standard hazard insurance policy, flood insurance policy
or title insurance policy, including all riders and endorsements thereto in
effect, including any replacement policy or policies for any such insurance
policies.
Insurance
Proceeds:
Amounts
paid pursuant to any Insurance Policy with respect to a Mortgage Loan that
have
not been used to restore the related Mortgaged Property or released to the
Mortgagor in accordance with the Servicer’s normal servicing
procedures.
Interest
Determination Date:
With
respect to the LIBOR Certificates and for each Accrual Period, the second LIBOR
Business Day preceding the commencement of such Accrual Period.
Interest
Rate:
With
respect to each Subsidiary REMIC Regular Interest, the applicable rate set
forth
or calculated in the manner described in the Preliminary Statement.
Interest
Rate Cap Accounts:
The
Class A-2 Interest Rate Cap Account and the Class A-3 Interest Rate Cap
Account.
23
Interest
Rate Cap Agreements:
The
Class A-2 Interest Rate Cap Agreement and the Class A-3 Interest Rate Cap
Agreement.
Interest
Rate Cap Agreement Counterparty:
Credit
Suisse International.
Interest
Rate Cap Agreement Termination Date:
With
respect to the Class A-2 Interest Rate Cap Agreement, the Distribution Date
in
August 2009, after any required payment is made. With respect to the Class
A-3
Interest Rate Cap Agreement, the Distribution Date in July 2011, after any
required payment is made.
Interest
Remittance Amount:
For any
Distribution Date, an amount equal to the sum
of (1)
all interest collected (other than related Payaheads, if applicable) or advanced
in respect of Scheduled Payments on the Mortgage Loans during the related
Collection Period, the interest portion of Payaheads previously received and
intended for application in the related Collection Period and the interest
portion of all Payoffs and Curtailments received on the Mortgage Loans during
the related Prepayment Period (other than interest on Principal Prepayments
in
full that occur during the portion of the Prepayment Period that is in the
same
calendar month as the related Distribution Date), less
(x) the
Servicing Fee and any lender paid Mortgage Guaranty Insurance Policy premiums
with respect to the Mortgage Loans and (y) unreimbursed Advances and other
amounts due to the Servicers, the Master Servicer, the Trust Administrator
or
the Trustee with respect to the Mortgage Loans, to the extent allocable to
interest, (2) all Compensating Interest Payments paid by the Servicer or the
Master Servicer with respect to the Mortgage Loans with respect to such
Distribution Date, (3) the portion of any Substitution Adjustment Amount and
Purchase Price paid with respect to the Mortgage Loans during the calendar
month
immediately preceding the Distribution Date, in each case allocable to interest,
and the proceeds of any purchase of the Mortgage Loans by the Servicer pursuant
to Section 11.01 allocable to interest and (4) all Net Liquidation Proceeds,
and
any Insurance Proceeds and other recoveries (net of unreimbursed Advances,
Servicing Advances and expenses, to the extent allocable to interest, and unpaid
Servicing Fees) collected with respect to the Mortgage Loans during the prior
calendar month, to the extent allocable to interest.
Interest
Shortfall:
For any
Distribution Date, an amount equal to the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rate) on the
Mortgage Loans resulting from (a) Prepayment Interest Shortfall Amounts to
the
extent not covered by a Compensating Interest Payment and (b) limitations on
interest payments on certain of the Mortgage Loans pursuant to the provisions
of
the Relief Act.
ISDA:
International Swaps and Derivatives Association, Inc.
ISDA
Master Agreement:
An ISDA
Master Agreement (Multicurrency-Cross Border) in the form published by ISDA
in
1992 including the schedule thereto.
Lender
Paid Mortgage Guaranty Insurance Policy:
Any
lender paid Mortgage Guaranty Insurance Policy.
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 related Servicer has determined (with
respect to the Mortgage Loans, in accordance with this Agreement that it has
received all amounts it expects to receive in connection with the liquidation
of
such Mortgage Loan, including the final disposition of the related REO
Property.
24
Liquidation
Expenses:
Customary and reasonable “out of pocket” expenses incurred by a Servicer (or the
related Sub-Servicer) in connection with the liquidation of any defaulted
Mortgage Loan and not recovered by such Servicer (or the related Sub-Servicer)
under a Mortgage Guaranty Insurance Policy for reasons other than such
Servicer’s failure to comply with Section 3.03 of the Servicing
Agreement.
Liquidation
Proceeds:
Amounts, including Insurance Proceeds, received in connection with the partial
or complete liquidation of defaulted Mortgage Loans, whether through trustee’s
sale, foreclosure sale or otherwise or amounts received in connection with
any
condemnation or partial release of a Mortgaged Property related to a Mortgage
Loan and any other proceeds received in connection with an REO Property, other
than Recoveries.
Loan-to-Value
Ratio:
As of
any date, the fraction, expressed as a percentage, the numerator of which is
the
Stated Principal Balance of the related Mortgage Loan at the date of
determination and the denominator of which is the Appraised Value of the
Mortgaged Property.
Lost
Mortgage Note:
Any
Mortgage Note the original of which was permanently lost or destroyed and has
not been replaced.
Lower
Tier Interest:
As
described in the Preliminary Statement.
Master
REMIC:
As
described in the Preliminary Statement.
Master
Servicer:
Xxxxx
Fargo.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS®
System.
MERS®
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
The
mortgage identification number for any MERS Mortgage Loan.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Excess Cashflow:
For any
Distribution Date, an amount equal to the sum
of the
Monthly Excess Interest and the Overcollateralization Release Amount, if any,
for such date.
25
Monthly
Excess Interest:
As to
any Distribution Date, the Interest Remittance Amount remaining after the
application of payments pursuant to clauses (i) through (v) of Section
4.01(I)(a) and the Principal Payment Amount remaining after the application
of
payments pursuant to clauses (A) through (F) of Section 4.01(b)(I) or clauses
(A) through (E) of Section 4.01(b)(I), as applicable.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor thereto.
Mortgage:
With
respect to a Mortgage Loan, the mortgage, deed of trust or other instrument
creating a first lien on a fee simple or leasehold estate in real property
securing a Mortgage Note.
Mortgage
File:
For
each Mortgage Loan, the Trustee Mortgage File and the Servicer Mortgage
File.
Mortgage
Guaranty Insurance Policy:
Each
policy of primary mortgage guaranty insurance or any replacement policy therefor
with respect to any Mortgage Loan.
Mortgage
Loans:
Such of
the mortgage loans and cooperative loans transferred and assigned to the Trustee
pursuant to the provisions hereof as from time to time are held as a part of
the
Trust Fund (including any REO Property), the mortgage loans so held being
identified in the Mortgage Loan Schedule, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage
Loan Auction Price:
The
price, calculated as set forth in Section 11.01, to be paid in connection with
the purchase of the Mortgage Loans by the Auction Purchaser.
Mortgage
Loan Purchase Price:
The
price, calculated as set forth in Section 11.01, to be paid in connection with
the purchase of the Mortgage Loans pursuant to an Optional
Termination.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as from time to time amended by the Seller to reflect
the addition of Qualified Substitute Mortgage Loans and the purchase of Mortgage
Loans pursuant to Section 2.02 or 2.03) transferred to the Trustee as part
of
the Trust Fund and from time to time subject to this Agreement, attached hereto
as Schedule I, setting forth the following information with respect to each
Mortgage Loan and applicable Servicer by Loan Group:
1. the
Mortgage Loan identifying number;
2. a
code
indicating the type of Mortgaged Property (detached single family dwelling,
PUD,
condominium unit, two- to four-unit residential property or Cooperative Unit)
and the occupancy status;
3. the
original months to maturity or the remaining months to maturity from the Cut-off
Date, in any case based on the original amortization schedule and, if different,
the maturity expressed in the same manner but based on the actual amortization
schedule;
26
4. the
Loan-to-Value Ratio at origination;
5. a
code
indicating the existence of a subordinate lien for the related mortgaged
property;
6. the
combined loan-to-value ratio at origination;
7. the
related borrower’s debt-to-income ratio;
8. the
related borrower’s credit score at origination;
9. the
Mortgage Rate as of the Cut-off Date;
10. the
stated maturity date;
11. the
amount of the Scheduled Payment as of the Cut-off Date;
12. the
original principal amount of the Mortgage Loan;
13. the
principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due on or before the
Cut-off Date whether or not collected;
14. a
code
indicating the purpose of the Mortgage Loan (i.e.,
purchase, rate and term refinance, equity take-out refinance);
15. a
code
indicating whether a Prepayment Premium is required to be paid in connection
with a prepayment of the Mortgage Loan and the term and the amount of the
Prepayment Premium;
16. the
Expense Fee Rate as of the Cut-off Date;
17. the
Servicing Fee Rate (which may be disclosed on the Mortgage Loan Schedule in
two
parts identified as the servicing fee and the master servicing fee or in two
parts identified as the “Lender Fee” and the “Mgmt Fee” or in two parts
identified as “service fee” and “excess fee”);
18. a
code
indicating whether the Mortgage Loan is covered under a borrower paid or lender
paid Primary Insurance Policy (and, if so, the name of the insurance carrier)
and the rate at which any lender paid Primary Insurance Policy premium is
calculated, if applicable;
19. a
code
indicating whether the Mortgage Loan is a MERS Mortgage Loan and, if so, its
corresponding MIN.
With
respect to the Mortgage Loans in the aggregate, each Mortgage Loan Schedule
shall set forth the following information, as of the Cut-off Date:
1. the
number of Mortgage Loans;
27
2. the
current aggregate principal balance of the Mortgage Loans as of the close of
business on the Cut-off Date, after deduction of payments of principal due
on or
before the Cut-off Date whether or not collected; and
3. the
weighted average Mortgage Rate of the Mortgage Loans.
Mortgage
Note:
The
original executed note or other evidence of the indebtedness of a Mortgagor
under a Mortgage Loan.
Mortgage
Rate:
The
annual rate of interest borne by a Mortgage Note.
Mortgaged
Property:
The
underlying real property securing a Mortgage Loan or, with respect to a
Cooperative Loan, the related Cooperative Shares and Proprietary
Lease.
Mortgagor:
The
obligor on a Mortgage Note.
Most
Senior Enhancement Percentage:
With
respect to any Distribution Date and any Class of Certificates, a fraction,
expressed as a percentage, the numerator of which is the sum
of (i)
the aggregate Class Principal Balance of those Classes of Certificates that
are
lower in priority and (ii) the Overcollateralization Amount (which, for purposes
of this definition only, shall not be less than zero), in each case prior to
giving effect to payments on such Distribution Date, and the denominator of
which is the Aggregate Loan Balance as of the first day of the related
Collection Period.
Net
Funds Cap:
For any
Distribution Date and each Class of Offered Certificates, a per annum rate
equal
to (a) a fraction, expressed as a percentage, the numerator of which is the
product
of
(1) the Optimal Interest Remittance Amount on such date and (2) 12,
and the denominator of which is the Aggregate Loan Balance for the immediately
preceding Distribution Date multiplied
by, with
respect to the LIBOR Certificates only, (b) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
immediately preceding Accrual Period.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the excess of the related Liquidation
Proceeds over the sum of Liquidation Expenses, Expense Fees and unreimbursed
Advances and Servicing Advances.
Net
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the Mortgage
Rate for such Mortgage Loan less the related Expense Fee Rate.
Net
Prepayment Interest Shortfall Amount:
For any
Distribution Date, the amount by which the aggregate of Prepayment Interest
Shortfall Amounts during the related Prepayment Period exceeds the related
Compensating Interest Payments for such Distribution Date.
1933
Act:
The
Securities Act of 1933, as amended.
Nonrecoverable
Advance:
Any
portion of an Advance or Servicing Advance previously made or proposed to be
made by the Master Servicer or a Servicer that, in the good faith judgment
of
the Master Servicer or a Servicer, will not be ultimately recoverable by the
Master Servicer or a Servicer from the related Mortgagor, related Liquidation
Proceeds or otherwise from proceeds or collections on the related Mortgage
Loan.
28
Offered
Certificates:
As set
forth in the Preliminary Statement.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman of the Board,
the President, an Executive Vice President, Senior Vice President, a Vice
President, or other authorized officer, the Treasurer, the Secretary, or one
of
the Assistant Treasurers or Assistant Secretaries of the Depositor, the Seller,
the Master Servicer, the Servicer, a Sub-Servicer, the Trustee or the Trust
Administrator, as the case may be, and delivered to the Depositor, the Seller,
the Master Servicer, the Servicer, the Trustee or the Trust Administrator,
as
required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Depositor, the Master
Servicer or a Servicer, reasonably acceptable to the Trustee and the Trust
Administrator. With respect to the definition of Eligible Account in this
Article I and Sections 2.05 and 7.04 hereof and any opinion dealing with the
qualification of the REMIC or compliance with the REMIC Provisions, such counsel
must (i) in fact be independent of the Depositor, the Master Servicer and such
Servicer, (ii) not have any direct financial interest in the Depositor, the
Master Servicer or such Servicer or in any affiliate of either of them and
(iii)
not be connected with Depositor, the Master Servicer or such Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
Optimal
Interest Remittance Amount:
With
respect to any Distribution Date, an amount equal to the excess
of (i)
the product
of (1)
(x) the weighted average Net Mortgage Rate of the Mortgage Loans as of the
first
day of the related Collection Period divided
by (y)
12 and (2) the Aggregate Loan Balance for the immediately preceding Distribution
Date, over
(ii) any
expenses that reduce the Interest Remittance Amount that did not arise as a
result of a default or delinquency of the Mortgage Loans or were not taken
into
account in computing the Expense Fee Rate.
Optional
Termination:
Any
purchase of the Mortgage Loans by the Servicer, pursuant to
Section 11.01.
Optional
Termination Date:
As
defined in Section 11.01(a).
Optional
Termination Notice Period:
The
period during which notice is to be given to the affected Certificateholders
of
an Optional Termination pursuant to Section 11.03(d).
OTS:
The
Office of Thrift Supervision.
Overcollateralization
Amount:
For any
Distribution Date the excess,
if any,
of (x) the applicable Aggregate Loan Balance for such Distribution Date
over
(y) the
aggregate Class Principal Balance of the Certificates after giving effect to
payments on such Distribution Date.
Overcollateralization
Commencement Date:
The
Distribution Date in October 2006.
29
Overcollateralization
Deficiency:
For any
Distribution Date, the excess,
if any,
of (x) the Targeted Overcollateralization Amount for such Distribution Date
over
(y) the
Overcollateralization Amount for such Distribution Date, calculated for this
purpose after giving effect to the reduction on such Distribution Date of the
aggregate Class Principal Balance of the Certificates resulting from the payment
of the Principal Payment Amount on such Distribution Date, but prior to
allocation of any Applied Loss Amount on such Distribution Date.
Overcollateralization
Release Amount:
For any
Distribution Date, an amount equal to the lesser
of (x)
the Principal Remittance Amount for such Distribution Date and (y) the amount,
if any, by which (1) the Overcollateralization Amount for such date, calculated
for this purpose on the basis of the assumption that 100% of the aggregate
Principal Remittance Amount for such date is applied on such date in reduction
of the aggregate of the Class Principal Balances of the Certificates, exceeds
(2) the Targeted Overcollateralization Amount for such date.
Ownership
Interest:
With
respect to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
Par
Value:
As
defined in Section 11.01.
Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
DTC
effects book-entry transfers and pledges of securities deposited with
DTC.
Pass-Through
Entity:
(a) a
regulated investment company described in Section 851 of the Code, a real estate
investment trust described in Section 856 of the Code, a common trust fund
or an
organization described in Section 1381(a) of the Code, (b) any partnership,
trust or estate or (c) any person holding a Class A Certificate as nominee
for
another person.
Pass-Through
Rate:
For any
interest-bearing Class of Certificates, the per annum rate set forth or
calculated in the manner described in the Preliminary Statement. Interest on
the
Certificates (other than the LIBOR Certificates) shall be computed on the basis
of a 360-day year comprised of twelve 30-day months. Interest on the LIBOR
Certificates shall be calculated on the basis of a 360-day year and the actual
number of days elapsed in each Accrual Period.
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Monthly Payment
received by the Servicer during any Due Period in addition to the Monthly
Payment due on such Due Date and intended by the Mortgagor to be applied at
a
future Due Date.
Payoff:
Any
payment of principal on a Mortgage Loan equal to the entire outstanding Stated
Principal Balance of such Mortgage Loan, if received in advance of the last
scheduled Due Date for such Mortgage Loan and accompanied by an amount of
interest equal to accrued unpaid interest on the Mortgage Loan to the date
of
such payment-in-full.
PCAOB:
The
Public Company Accounting Oversight Board.
30
Percentage
Interest:
As to
any Certificate, either the percentage 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.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government, or any agency or
political subdivision thereof.
Physical
Certificates:
As set
forth in the Preliminary Statement.
Pledge
Instruments:
With
respect to each Cooperative Loan, the Stock Power, the Assignment of Proprietary
Lease and the Security Agreement.
Prepayment
Interest Shortfall Amount:
As
defined in the Servicing Agreement.
Prepayment
Premium:
With
respect to any Mortgage Loan, any penalty, fee or premium required to be paid
if
the Mortgagor prepays such Mortgage Loan as provided in the related Mortgage
Note or Mortgage.
Prepayment
Period:
With
respect to any full or partial Principal Prepayments and any Distribution Date,
the calendar month immediately preceding such Distribution Date.
Principal
Payment Amount:
For any
Distribution Date, the excess
of the
Principal Remittance Amount for such date over
the
Overcollateralization Release Amount, if any, for such date.
Principal
Prepayment:
Any
payment of principal on a Mortgage Loan that constitutes a Payoff or
Curtailment.
Principal
Remittance Amount:
For any
Distribution Date, an amount equal to the sum
of
(1) all principal collected (other than Payaheads) or advanced in respect
of Scheduled Payments on the Mortgage Loans during the related Collection Period
(less
unreimbursed Advances, Servicing Advances and other amounts due to the Servicer,
the Master Servicer, the Trust Administrator and the Trustee with respect to
the
Mortgage Loans, to the extent allocable to principal) and the principal
portion of Payaheads previously received and intended for application in the
related Collection Period, (2) all Principal Prepayments on the Mortgage
Loans received during the related Prepayment Period, (3) the outstanding
principal balance of each Mortgage Loan that was repurchased by the Seller
or
purchased by the Servicer during the calendar month immediately preceding such
Distribution Date, (4) the principal portion of the Mortgage Loan Purchase
Price
received in connection with an Optional Termination pursuant to Section 11.01,
(5) the principal portion of the Mortgage Loan Auction Price received in
connection with an Auction Sale pursuant to Section 11.01, (6) the portion
of any Substitution Adjustment Amount paid with respect to any Deleted Mortgage
Loans during the calendar month immediately preceding such Distribution Date
allocable to principal and (7) all Net Liquidation Proceeds (net of
unreimbursed Advances, Servicing Advances and other expenses, to the extent
allocable to principal) and any Recoveries collected with respect to the
Mortgage Loans during the prior calendar month, to the extent allocable to
principal.
31
Private
Certificates:
As set
forth in the Preliminary Statement.
Proprietary
Lease:
The
lease on a Cooperative Unit evidencing the possessory interest of the owner
of
the Cooperative Shares in such Cooperative Unit.
Prospectus:
The
Prospectus dated August 28, 2006 relating to the offering by the Depositor
from
time to time of its TBW Mortgage-Backed Pass-Through Certificates (Issuable
in
Series) in the form in which it was or will be filed with the Securities and
Exchange Commission pursuant to Rule 424(b) under the 1933 Act with respect
to
the offer and sale of the Offered Certificates.
Prospectus
Supplement:
The
Prospectus Supplement, dated August 29,
2006,
relating to the offering of the Offered Certificates in the form in which it
was
or will be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the 1933 Act with respect to the offer and sale of the Offered
Certificates.
Purchase
Price:
With
respect to any Mortgage Loan required to be purchased by the related Seller
pursuant to Section 2.02 or 2.03, the sum of (i) 100% of the unpaid principal
balance of the Mortgage Loan on the date of such purchase, (ii) accrued and
unpaid interest on the Mortgage Loan at the applicable Mortgage Rate (reduced
by
the Servicing Fee Rate, if the purchaser is also the Servicer) from the date
through which interest was last paid by the Mortgagor to the Due Date in the
month in which the Purchase Price is to be distributed to Certificateholders,
(iii) in the case of a Mortgage Loan purchased by the Seller, the amount of
any
unreimbursed Servicing Advances made by the Servicer with respect to such
Mortgage Loan and (iv) any
costs and damages (including without limitation late fees) actually incurred
and
paid by or on behalf of the Trust in connection with the fact that such Mortgage
Loan at the time it was made failed to comply in all material respects with
applicable federal, state or local predatory and abusive lending laws, to the
extent such costs and damages result from a breach by the Seller of the
representation and warranty set forth in Schedule III(viii).
With
respect to any Mortgage Loan required or allowed to be purchased, the Servicer
or the Seller, as applicable, shall deliver to the Trustee and the Trust
Administrator an Officer’s Certificate as to the calculation of the Purchase
Price.
Qualified
Insurer:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, approved as a FNMA- or FHLMC-approved mortgage
insurer or having a claims paying ability rating of at least “AA” or equivalent
rating by a nationally recognized statistical rating organization. Any
replacement insurer with respect to a Mortgage Loan must have at least as high
a
claims paying ability rating as the insurer it replaces had on the Closing
Date.
Qualified
Substitute Mortgage Loan:
One or
more Mortgage Loans substituted by the Seller for one or more Deleted Mortgage
Loans which must, on the date of such substitution, as confirmed in a Request
for Release, substantially in the form of Exhibit
L,
individually or in the aggregate and on a weighted average basis, as applicable,
(i) have a Stated Principal Balance, after deduction of the principal portion
of
the Scheduled Payment due in the month of substitution, not in excess of, and
not more than 10% less than the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) be accruing interest at a rate no lower than and not more than 1%
per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value
Ratio no higher than that of the Deleted Mortgage Loan; (iv) have a remaining
term to maturity not more than one year greater than or less than that of the
Deleted Mortgage Loan, provided
that the
remaining term to maturity of any such Mortgage Loan shall be no greater than
the last maturing Mortgage Loan in the Trust immediately prior to any
substitution; (v) not be a Cooperative Loan and (vi) comply with each
representation and warranty set forth in Section 2.03(b).
32
Qualified
Substitute Mortgage Loan Excess Interest:
For any
Qualified Substitute Mortgage Loan and Distribution Date, the product of (x)
the
Stated Principal Balance, as of the second preceding Due Date after giving
effect to scheduled payments for that Due Date, whether or not received, of
such
Mortgage Loan and (y) the Qualified Substitute Mortgage Loan Excess Interest
Rate for such Mortgage Loan and Distribution Date.
Qualified
Substitute Mortgage Loan Excess Interest Rate:
For any
Qualified Substitute Mortgage Loan and Distribution Date, the excess of the
rate
at which such Mortgage Loan is accruing interest over the rate at which the
related Deleted Mortgage Loan was accruing interest on the date of
substitution.
Rating
Agency:
S&P
or Moody’s, or any successor to either of them.
Ratings:
As of
any date of determination, the ratings, if any, of the Certificates as assigned
by the Rating Agencies.
Realized
Loss:
With
respect to any Liquidated Mortgage Loan, an amount (not less than zero or more
than the Stated Principal Balance of the Mortgage Loan) as of the date of such
liquidation, equal to (i) the Stated Principal Balance of the Liquidated
Mortgage Loan as of the date of such liquidation, plus (ii) interest at the
applicable Net Mortgage Rate from the related Due Date as to which interest
was
last paid or advanced (and not reimbursed) to Certificateholders up to the
related Due Date in the month in which Liquidation Proceeds are required to
be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Net Liquidation Proceeds, if any, received
during the month in which such liquidation occurred, to the extent applied
as
recoveries of interest at the Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan.
Record
Date:
With
respect to any Distribution Date and the LIBOR Certificates, the Business Day
immediately preceding that Distribution Date so long as the Certificates remain
Book-Entry Certificates, or otherwise on the close of business on the last
Business Day of the month preceding the month in which the applicable
Distribution Date occurs. With respect to any Class of Certificates other than
the LIBOR Certificates, the close of business on the last Business Day of the
month preceding the month in which the applicable Distribution Date
occurs.
Recovery:
With
respect to any Distribution Date and Mortgage Loan that became a Liquidated
Mortgage Loan in a month preceding the month prior to that Distribution Date,
an
amount received in respect of such Liquidated Mortgage Loan during the prior
calendar month which has previously been allocated as a Realized Loss to a
Class
or Classes of Certificates, net of any reimbursable expenses.
33
Reference
Bank Rate:
As to
any Accrual Period relating to the LIBOR Certificates, the arithmetic mean
(rounded upwards, if necessary, to the nearest one sixteenth of a percent)
of
the offered rates for United States dollar deposits for one month which are
offered by the Reference Banks as of 11:00 A.M., London time, on the Interest
Determination Date prior to the first day of such Accrual Period to prime banks
in the London interbank market for a period of one month in amounts
approximately equal to the aggregate Class Principal Balance of the LIBOR
Certificates, provided
that at
least two such Reference Banks provide such rate. If fewer than two offered
rates appear, the Reference Bank Rate will be the arithmetic mean of the rates
quoted by one or more major banks in New York City, selected by the Trust
Administrator after consultation with DLJMC, as of 11:00 A.M., New York City
time, on such date for loans in U.S. Dollars to leading European banks for
a
period of one month in amounts approximately equal to the aggregate Class
Principal Balance of the LIBOR Certificates. If no such quotations can be
obtained, the Reference Bank Rate shall be the Reference Bank Rate applicable
to
the preceding Accrual Period.
Reference
Banks:
Three
major banks that are engaged in the London interbank market, selected by the
Trust Administrator after consultation with DLJMC.
Registration
Statement:
That
certain registration statement on Form S-3, as amended (Registration No.
333-135481),
relating to the offering by the Depositor from time to time of its CSMC
Mortgage-Backed Pass-Through Certificates (Issuable in Series) as heretofore
declared effective by the Securities and Exchange Commission.
Regular
Certificates:
All of
the Certificates other than the Residual Certificates.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§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 Red. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or
as may be provided by the Commission or its staff from time to time.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to the various parties, as set forth on
Exhibit
Q
attached
hereto. For clarification purposes, multiple parties can have responsibility
for
the same Relevant Servicing Criteria. With respect to a Servicing Function
Participant engaged by the Master Servicer, each Servicer, the Trust
Administrator, the Trustee or each Servicer, the term “Relevant Servicing
Criteria” may refer to a portion of the Relevant Servicing Criteria applicable
to such parties.
34
Relief
Act:
The
Servicemembers Civil Relief Act of 1940, as amended, and any similar state
or
local law.
Relief
Act Reductions:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended calendar month as a result of the application of the Relief
Act,
the amount, if any, by which (i) interest collectible on such Mortgage Loan
for
the most recently ended calendar month is less than (ii) interest accrued
thereon for such month pursuant to the Mortgage Note.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code. Reference herein to REMIC refers to the Master REMIC and the Subsidiary
REMIC, as the context requires.
REMIC
Election:
An
election, for federal income tax purposes, to treat certain assets as a
REMIC.
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.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
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.
Required
Basis Risk Reserve Fund Amount:
With
respect to any Distribution Date, $5,000.
Required
Basis Risk Reserve Fund Deposit:
With
respect to any Distribution Date, the sum
of
(i) any Basis Risk Shortfall for such date (net of amounts available to pay
Basis Risk Shortfalls on deposit in the Interest Rate Cap Accounts on such
date)
and (ii) the excess,
if any,
of the Required Basis Risk Reserve Fund Amount for such Distribution Date
over
the
amount on deposit in the Basis Risk Reserve Fund at the close of business on
the
Business Day immediately preceding such Distribution Date.
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement in respect of such Mortgage
Loan or the related Mortgaged Property.
Reportable
Event:
As
defined in Section 14.04.
Reporting
Servicer:
As
defined in Section 14.03.
35
Residual
Certificates:
The
Class AR Certificates.
Responsible
Officer:
When
used with respect to the Trustee or the Trust Administrator, shall mean any
officer within the corporate trust department of the Trustee or the Trust
Administrator, respectively, including any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer,
any
Trust Officer or any other officer of the Trustee or the Trust Administrator
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.
Rolling
Three Month Delinquency Rate:
For any
Distribution Date, the fraction, expressed as a percentage, equal to the average
of the related Delinquency Rates for each of the three (or one and two, in
the
case of the first and second Distribution Dates) immediately preceding
months.
Rule
144A:
Rule
144A under the 1933 Act, as in effect from time to time.
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
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 pursuant to the terms of the
related Mortgage Note.
Xxxxxxxx-Xxxxx
Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
As
defined in Section 14.09.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
Security
Agreement:
With
respect to a Cooperative Loan, the agreement or mortgage creating a security
interest in favor of the originator of the Cooperative Loan in the related
Cooperative Shares.
Seller:
DLJMC.
Senior
Certificates:
As set
forth in the Preliminary Statement.
Senior
Payment Priority:
As
defined in Section 4.01 (b)(I)(B).
Senior
Enhancement Percentage:
For any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the sum
of the
aggregate Class Principal Balance of the Subordinate Certificates and the
Overcollateralization Amount (which, for purposes of this definition only,
shall
not be less than zero), in each case prior to giving effect to payments on
such
Distribution Date (assuming no Trigger Event has occurred), and the denominator
of which is the Aggregate Loan Balance as of the first day of the related
Collection Period.
36
Senior
Payment Priority:
The
priority of payment set forth in Section 4.01(b)(I)(B).
Senior
Principal Payment Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger Event
has not occurred with respect to such Distribution Date, the excess,
if any,
of (x) the aggregate Class Principal Balance of the Senior Certificates
immediately prior to such Distribution Date over
(y) the lesser
of
(A) the product
of
(i) 87.00% and (ii) the Aggregate Loan Balance for such Distribution
Date and (B) the excess,
if any,
of (i) the Aggregate Loan Balance for such Distribution Date over
(ii) 0.50% of the Aggregate Loan Balance as of the Cut-off
Date.
Sequential
Trigger Event:
With
respect to any Distribution Date, if the Class Principal Balance of the Class
M-1 Certificates has been reduced to zero, a Sequential Trigger Event is in
effect.
Servicer:
TBW and
any successor in interest thereto or any successor servicer appointed as
provided herein and the Servicing Agreement.
Service(s)(ing):
In
accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust by an entity that meets the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicer
Mortgage File:
All
documents pertaining to a Mortgage Loan not required to be included in the
Trustee Mortgage File and held by the Master Servicer or the Servicer or any
Sub-Servicer.
Servicing
Advance:
The
meaning assigned to such term in the Servicing Agreement.
Servicing
Agreement:
The
securitization servicing agreement between DLJ Mortgage Capital, Inc., as
seller, the Master Servicer, the Trust Administrator, the Trustee and TBW as
servicer, dated as of August 1, 2006.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
As to
each Mortgage Loan and any Distribution Date, an amount equal to one month’s
interest at the Servicing Fee Rate on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month of such Distribution Date (prior
to giving effect to any Scheduled Payments due on such Mortgage Loan on such
Due
Date), subject to reduction as provided in Section 3.14.
37
Servicing
Fee Rate:
0.25%
per annum.
Servicing
Function Participant:
Any
Sub-Servicer, Subcontractor or any other Person, other than each Servicer,
the
Master Servicer, the Trustee and the Trust Administrator, that is performing
activities addressed by the Servicing Criteria, unless such Person’s activities
relate only to 5% or less of the Mortgage Loans (measured as the weighted
average of the monthly percentages of the aggregate Stated Principal Balance
of
the Mortgage Loans serviced by such participant during the commencement of
the
calendar year prior to the year in which an Assessment of Compliance is required
to be delivered, multiplied by a fraction, the numerator of which is the number
of months in such year during which such Servicing Function Participant Services
the related Mortgage Loans and the denominator of which is 12, or, in the case
of the year in which the Closing Date occurs, the number of months elapsed
from
the Cut-Off Date to the end of such calendar year).
Servicing
Officer:
Any
officer of the Master Servicer or a Servicer involved in, or responsible for,
the administration and servicing of the related Mortgage Loans whose name and
specimen signature appear on a list of servicing officers furnished to the
Trustee and the Trust Administrator by the Master Servicer or by a Servicer
on
the Closing Date pursuant to this Agreement, as such list may from time to
time
be amended and delivered to the Trustee and Trust Administrator.
Special
Payoff Mortgage Loan:
With
respect to any Distribution Date, any Mortgage Loan (i) that was subject to
a
Payoff in the month preceding the month of such Distribution Date and (ii)
the
principal of which was distributed on the Distribution Date immediately
preceding such Distribution Date.
Standard
Hazard Policy:
Each
standard hazard insurance policy or replacement therefor.
Startup
Day:
The
Closing Date.
Stated
Principal Balance:
As to
any Mortgage Loan and date of determination, the principal balance of such
Mortgage Loan as of the Cut-off Date, after application of the principal portion
of all Scheduled Payments due on or before the Cut-off Date, whether or not
received, minus the sum of (i) all amounts allocable to principal that have
been
distributed to Certificateholders with respect to such Mortgage Loan on or
before that date of determination and (ii) any Realized Losses on such Mortgage
Loan that have been allocated to one or more Classes of Certificates on or
before that date of determination.
Stepdown
Date:
The
date occurring on the earlier
of (i)
the first Distribution Date following the Distribution Date on which the
aggregate principal balance of the Senior Certificates is reduced to zero and
the later
of (x)
the Distribution Date in September 2009 and (y) the first Distribution Date
on
which the Senior Enhancement Percentage (calculated for this purpose after
giving effect to payments or other recoveries in respect of the Mortgage Loans
during the related Collection Period but before giving effect to payments on
the
Certificates on such Distribution Date) is greater than or equal to
13.00%.
38
Stock
Power:
With
respect to a Cooperative Loan, an assignment of the stock certificate or an
assignment of the Cooperative Shares issued by the Cooperative
Corporation.
Subcontractor:
Any
vendor, subcontractor or other Person that (i) is a Servicing Function
Participant and (ii) is not responsible for the overall servicing of Mortgage
Loans but performs one or more discrete functions identified in Item 1122(d)
of
Regulation AB with respect to Mortgage Loans under the direction or authority
of
any Servicer (or a Sub-Servicer of any Servicer), the Master Servicer, the
Trustee or the Trust Administrator.
Subordinate
Certificates:
As set
forth in the Preliminary Statement.
Subservicing
Agreement:
An
agreement between the Servicer and a Sub-Servicer for the servicing of the
related Mortgage Loans.
Subsidiary
REMIC:
As
described in the Preliminary Statement.
Subsidiary
REMIC Regular Interest:
Any one
of the “regular interests” in the Subsidiary REMIC as described in the
Preliminary Statement.
Substitution
Adjustment Amount:
As
defined in Section 2.03(c).
Sub-Servicer:
Any
Person that (i) is a Servicing Function Participant, (ii) services Mortgage
Loans on behalf of any Servicer, and (iii) is responsible for the performance
(whether directly or through sub-servicers or Subcontractors) of Servicing
functions required to be performed under this Agreement, any related Designated
Servicing Agreement or any sub-servicing agreement that are identified in Item
1122(d) of Regulation AB.
Sub-Servicing
Agreement:
Any
servicing agreement between the Servicer and a Sub-Servicer pursuant to which
such Servicer delegates any of its servicing responsibilities with respect
to
any of the Mortgage Loans.
Targeted
Overcollateralization Amount:
With
respect to any Distribution Date prior to the Stepdown Date, 1.00% of the
Aggregate Loan Balance as of the Cut-off Date; (2) with respect to any
Distribution Date on or after the Stepdown Date and with respect to which a
Trigger Event has not occurred, the greater
of (a)
2.00% of the Aggregate Loan Balance for such Distribution Date, and
(b) 0.50% of the Aggregate Loan Balance as of the Cut-off Date; and (3)
with respect to any Distribution Date on or after the Stepdown Date with respect
to which a Trigger Event has occurred and is continuing, the Targeted
Overcollateralization Amount for the Distribution Date immediately preceding
such Distribution Date.
Tax
Matters Person:
The
person designated as “tax matters person” in the manner provided under Treasury
regulation § 1.860F-4(d) and temporary Treasury regulation
§ 301.6231(a)(7)-1T. Initially, the Tax Matters Person shall be the Trust
Administrator.
39
TBW:
Xxxxxx,
Xxxx & Xxxxxxxx Mortgage Corp.
Transferee
Affidavit and Agreement:
As
defined in Section 6.02(g)(iii).
Trigger
Event:
A
Trigger Event shall occur for any Distribution Date if either (i) the Rolling
Three Month Delinquency Rate as of the last day of the related Collection Period
equals or exceeds the applicable percentage set forth in the table immediately
below of the Most Senior Enhancement Percentage for the most senior Class of
Certificates then outstanding :
Class
|
Percentage
|
Senior
|
50.00%
|
Class
M-1
|
82.25%
|
Class
M-2
|
141.30%
|
Class
M-3
|
216.65%
|
Class
M-4
|
325.00%
|
or
(ii)
the cumulative Realized Losses with respect to Mortgage Loans as a percentage
of
the original Aggregate Loan Balance on the Closing Date for such Distribution
Date is greater than the percentage set forth in the following table:
Range
of Distribution Dates
|
Cumulative
Loss Percentage
|
September
2008 - August 2009
|
0.25%*
|
September
2009 - August 2010
|
0.60%*
|
September
2010 - August 2011
|
1.05%*
|
September
2011 - August 2012
|
1.45%*
|
September
2012 - and thereafter
|
1.75%
|
*
The
percentages set forth above are the percentages applicable for the first
Distribution Date in the corresponding range of Distribution Dates. The
percentage for each succeeding Distribution Date in a range increases
incrementally by 1/12 of the positive difference between the percentage
applicable to the first Distribution Date in that range and the percentage
applicable to the first Distribution Date in the succeeding range.
Trust
Administrator:
Xxxxx
Fargo Bank, N.A. a national banking association, not in its individual capacity,
but solely in its capacity as trust administrator for the benefit of the
Certificateholders under this Agreement, and any successor thereto, as provided
herein.
Trust
Fund:
The
corpus of the trust created by this Agreement consisting of (a) the Mortgage
Loans listed in the Mortgage Loan Schedule, including all interest and principal
received on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date, together with the Mortgage Files relating
to the Mortgage Loans, (b) REO Property, (c) the Custodial Account, the
Certificate Account, the Interest Rate Cap Accounts (subject to Section
4.08(b)), the Interest Rate Cap Agreements and the Basis Risk Reserve Fund
and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement, (d) any insurance policies with respect to the Mortgage Loans, (e)
the Depositor’s rights under the Assignment and Assumption Agreement and (g) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid property.
40
Trust
Receipt and Final Certification:
As
defined in Section 2.02(a).
Trust
Receipt and Initial Certification:
As
defined in Section 2.02(a).
Trustee:
U.S.
Bank National Association, a national banking association, not in its individual
capacity, but solely in its capacity as trustee for the benefit of the
Certificateholders under this Agreement, and any successor thereto, as provided
herein.
Trustee
Mortgage File:
The
mortgage documents listed in Section 2.01 hereof pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Trustee
Mortgage File pursuant to this Agreement.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
U.S.
Bank:
U.S.
Bank National Association.
U.S.
Person:
A
citizen or resident of the United States, a corporation, partnership or other
entity treated as a corporation or partnership for federal income tax purposes
created or organized in, or under the laws of, the United States, any State
thereof or the District of Columbia, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States, and any trust that elects
to be
treated as a United States Person that is eligible to make such election under
Code Section 7701(a)(30).
Voting
Rights:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement, 99% of all Voting Rights shall be
allocated among the Holders of the Certificates, except for the Class P, Class
X
and Class AR Certificates. The portion of such 99% Voting Rights allocated
to
each of the Certificates, except for the Class P, Class X and Class AR
Certificates, shall be based on the fraction, expressed as a percentage, the
numerator of which is the aggregate Class Principal Balance then outstanding
and
the denominator of which is the Class Principal Balance of all such Classes
then
outstanding. The Class X Certificates shall be allocated 1% of the Voting
Rights. Voting Rights shall be allocated among the Certificates within each
such
Class in proportion to their respective Percentage Interests. The Class P and
Class AR Certificates shall have no Voting Rights.
41
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
SECTION
2.01
|
Conveyance
of Trust Fund.
|
(a) The
Depositor hereby sells, transfers, assigns, delivers, sets over and otherwise
conveys to the Trustee in trust for the benefit of the Certificateholders,
without recourse, the Depositor’s right, title and interest in and to (a) the
Mortgage Loans listed in the Mortgage Loan Schedule, including all interest
and
principal received or receivable by the Depositor on or with respect to the
Mortgage Loans after the Cut-off Date, but not including payments of principal
and interest due and payable on the Mortgage Loans on or before the Cut-off
Date, together with the Mortgage Files relating to the Mortgage Loans, (b)
REO
Property related to the Mortgage Loans, (c) the Custodial Account, the
Certificate Account, the Interest Rate Cap Accounts, the Basis Risk Reserve
Fund, the Class P Reserve Fund and all amounts deposited therein pursuant to
the
applicable provisions of this Agreement, (d) any insurance policies with respect
to the Mortgage Loans, (e) the Depositor’s rights under the Assignment and
Assumption Agreement and (f) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property. In
addition, on or prior to the Closing Date, the Depositor shall cause the Trust
Administrator, on behalf of the Trust, to enter into the Interest Rate Cap
Agreements with the Interest Rate Cap Agreement Counterparty and the Depositor
shall pay or cause to be paid on behalf of the Trust Fund the payments owed
to
the Interest Rate Cap Agreement Counterparty as of the Closing Date under the
Interest Rate Cap Agreements.
(b) It
is
agreed and understood by the Depositor, the Seller, the Servicer, the Master
Servicer, the Trust Administrator and the Trustee that it is not intended that
any Mortgage Loan be included in the Trust Fund that is a “High-Cost Home Loan”
as defined in the New Jersey Home Ownership Act, effective as of November 27,
2003, or The Home Loan Protection Act of New Mexico, effective as of January
1,
2004, or that is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective as of November 7,
2004, or that is an “Indiana High Cost Home Mortgage Loan” as defined in the
Indiana High Cost Home Loan Act, effective as of January 1, 2005.
(c) In
connection with the transfer and assignment set forth in clause (a) above,
the
Depositor has delivered or caused to be delivered to the Custodian for the
benefit of the Certificateholders, the documents and instruments with respect
to
each Mortgage Loan as assigned:
(A)
the
original Mortgage Note bearing all intervening endorsements and including any
riders to the Mortgage Note, endorsed “Pay to the order of ________________,
without recourse” and signed in the name of the last named endorsee by an
authorized officer or (B) with respect to any Lost Mortgage Note, a lost note
affidavit and indemnity from the Seller stating that the original Mortgage
Note
was lost or destroyed (together with a copy of such Mortgage Note, if available)
and indemnifying the Trust Fund against any loss, cost or liability resulting
from the failure to deliver the original Mortgage Note;
42
the
original of any guarantee executed in connection with the Mortgage Note (if
any);
for
each
Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, with
evidence of recording thereon, or copies certified by the related recording
office or if the original Mortgage has not yet been returned from the recording
office, a copy certified by or on behalf of the related Seller indicating that
such Mortgage has been delivered for recording (the return directions for the
original Mortgage should indicate, when recorded, mail to the related Seller)
and in the case of each MERS Mortgage Loan, the original Mortgage, noting the
presence of the MIN of the related Mortgage Loan and either language indicating
that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or
if
the Mortgage Loan was not a MOM Loan at origination, the original Mortgage
and
the assignment thereof to MERS, with evidence of recording indicated thereon
or
a copy of the Mortgage certified by the public recording office in which such
Mortgage has been recorded;
the
originals of all assumption, modification, consolidation or extension
agreements, (or, if an original of any of these documents has not been returned
from the recording office, a copy thereof certified by or on behalf of the
related Seller, the original to be delivered to the related Seller forthwith
after return from such recording office) with evidence of recording thereon,
if
any;
for
each
Mortgage Loan that is not a MERS Mortgage Loan, the original Assignment of
Mortgage as appropriate, in recordable form, for each Mortgage Loan from the
last assignee assigned in blank;
for
each
Mortgage Loan that was not a MERS Mortgage Loan at its origination, the
originals of any intervening recorded Assignments of Mortgage, showing a
complete chain of assignment from origination to the last assignee, including
warehousing assignments, with evidence of recording thereon (or, if an original
intervening Assignment of Mortgage has not been returned from the recording
office, a copy thereof certified by or on behalf of the related Seller, the
original to be delivered to the Custodian forthwith after return from such
recording office); and
a
copy of
the original mortgage title insurance policy (the original of which is held
by
the Servicer as custodian pursuant to the Servicing Agreement), or copy of
title
commitment (or in appropriate jurisdictions, attorney’s opinion of title and
abstract of title).
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Servicer agrees that it will cause, at the Servicer’s expense, the
MERS®
System
to indicate that such Mortgage Loans have been assigned by the Servicer to
the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
that
are repurchased or substituted in accordance with this Agreement) the
information required by the MERS®
System
to (a) identify the Trustee and (b) identify the series of the
Certificates issued in connection with such Mortgage Loans. The Servicer agrees
that it shall not alter the information referenced in this paragraph with
respect to any Mortgage Loan during the term of this Agreement unless and until
such Mortgage Loan is repurchased or substituted in accordance with the terms
of
this Agreement.
43
In
the
event the Depositor delivers to the Custodian certified copies of any document
or instrument set forth in 2.01(c) because of a delay caused by the public
recording office in returning any recorded document, the Depositor shall deliver
or cause to be delivered to the Custodian, within 60 days of the Closing Date,
an Officer’s Certificate that shall (i) identify the recorded document, (ii)
state that the recorded document has not been delivered to the Custodian due
solely to a delay caused by the public recording office and (iii) state the
amount of time generally required by the applicable recording office to record
and return a document submitted for recordation.
In
the
event that in connection with any Mortgage Loan the Depositor cannot deliver
(a)
for a Mortgage Loan that is not a MERS Mortgage Loan, the original recorded
Mortgage, (b) all interim recorded assignments or (c) a copy of the lender’s
title policy (together with all riders thereto) satisfying the requirements
set
forth above, concurrently with the execution and delivery hereof because such
document or documents have not been returned from the applicable public
recording office in the case of clause (a) or (b) above, or because the title
policy has not been delivered to the Seller or the Depositor by the applicable
title insurer in the case of clause (c) above, the Depositor shall promptly
deliver to the Custodian, in the case of clause (a) or (b) above, such original
Mortgage or such interim assignment, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the relevant recording
office.
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event within 30 days thereafter, DLJMC shall, at its expense, (i) affix or
cause
to be affixed the Trustee’s name to each Assignment of Mortgage, as the assignee
thereof, (ii) cause such assignment to be in proper form for recording in the
appropriate public office for real property records within 30 days after receipt
thereof and (iii) cause to be delivered for recording in the appropriate public
office for real property records the assignments of the Mortgages to the
Trustee, except that, with respect to any assignment of a Mortgage as to which
DLJMC has not received the information required to prepare such assignment
in
recordable form, DLJMC’s obligation to do so and to deliver the same for such
recording shall be as soon as practicable after receipt of such information
and
in any event within 30 days after the receipt thereof, and DLJMC need not cause
to be recorded any assignment that relates to a Mortgage Loan in any
jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered by the Depositor (at the Depositor’s expense) to the Trustee, the
Trust Administrator and DLJMC, acceptable to the Rating Agencies, the
recordation of such assignment is not necessary to protect the Trustee’s and the
Certificateholders’ interest in the related Mortgage Loan.
If
any
original Mortgage Note referred to in Section 2.01(c)(A) above cannot be
located, the obligations of the Depositor to deliver such documents shall be
deemed to be satisfied upon delivery to the Custodian of a photocopy of such
Mortgage Note, if available, with a lost note affidavit and indemnity
substantially in the form of Exhibit
F.
If any
of the original Mortgage Notes for which a lost note affidavit and indemnity
was
delivered to the Custodian is subsequently located, such original Mortgage
Note
shall be delivered to the Custodian within three Business Days.
44
(d) The
Trustee is authorized to enter into one or more Custodial Agreements, at the
direction of the Depositor, for the purpose of having a Custodian maintain
custody of the documents and instruments referred to in this Section 2.01,
and
any documents delivered thereunder shall be delivered to the Custodian and
any
Officer’s Certificates delivered with respect thereto shall be delivered to the
Trustee, the Trust Administrator and the Custodian.
(e) It
is the
express intent of the parties to this Agreement that the conveyance of the
Mortgage Loans by the Depositor to the Trustee as provided in this Section
2.01
be, and be construed as, a sale of the Mortgage Loans by the Depositor to the
Trustee. It is, further, not the intention of the parties to this Agreement
that
such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to
the
Trustee to secure a debt or other obligation of the Depositor. However, in
the
event that, notwithstanding the intent of the parties to this Agreement, the
Mortgage Loans are held to be the property of the Depositor or if, for any
other
reason, this Agreement is held or deemed to create a security interest in the
Mortgage Loans then (a) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code; (b) the conveyance provided for in this Section 2.01 shall
be
deemed to be a grant by the Depositor to the Trustee for the benefit of the
Certificateholders of a security interest in all of the Depositor’s right, title
and interest in and to the Mortgage Loans and all amounts payable to the holders
of the Mortgage Loans in accordance with the terms thereof and all proceeds
of
the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, including without limitation all
amounts, other than investment earnings, from time to time held or invested
in
the Certificate Account, whether in the form of cash, instruments, securities
or
other property; (c) the possession by the Trustee or the Custodian of such
items
of property and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “in possession by
the secured party” for purposes of perfecting the security interest pursuant to
Section 9-313 of the New York Uniform Commercial Code; and (d) notifications
to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the benefit of the
Certificateholders for the purpose of perfecting such security interest under
applicable law (except that nothing in this clause (d) shall cause any person
to
be deemed to be an agent of the Trustee for any purpose other than for
perfection of such security interests unless, and then only to the extent,
expressly appointed and authorized by the Trustee in writing). The Depositor
and
the Trustee, upon directions from the Depositor shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that,
if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest
of
first priority under applicable law and shall be maintained as such throughout
the term of this Agreement.
SECTION
2.02
|
Acceptance
by the Trustee.
|
(a) The
Trustee shall, or pursuant to the Custodial Agreement, the Trustee shall require
the Custodian to, execute and deliver on the Closing Date to the Depositor,
the
Master Servicer, the Seller, the Servicer, the Trustee and the Trust
Administrator a Trust Receipt and Initial Certification with respect to the
Mortgage Loans substantially in the form annexed hereto as Exhibit
J
(the
“Trust
Receipt and Initial Certification”).
Such
Trust Receipt and Initial Certification shall require the Custodian, based
on
its review and examination, and only as to the documents identified in such
Trust Receipt and Initial Certification, to acknowledge that such documents
appear regular on their face and relate to such Mortgage Loan. The Custodian
shall not be required to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine, enforceable
or appropriate for the represented purpose or that they have actually been
recorded in the real estate records or that they are other than what they
purport to be on their face.
45
The
Trustee shall, or pursuant to the Custodial Agreement, the Trustee shall require
the Custodian to, not later than 90 days after the Closing Date, deliver to
the
Depositor, the Master Servicer, the Seller, the Servicer, the Trustee and the
Trust Administrator a Trust Receipt and Final Certification with respect to
the
Mortgage Loans, in the form annexed hereto as Exhibit
K
(the
“Trust
Receipt and Final Certification”),
with
any applicable exceptions noted thereon.
Based
solely upon the Trust Receipt and Initial Certification received from the
Custodian, and subject to the provisions of Section 2.01 and any exceptions
noted on the exception report described in the next paragraph below, the Trustee
acknowledges receipt of the documents referred to in Section 2.01 above
and declares that it holds and will hold such documents and the other
documents delivered to it constituting the Mortgage File, and that it holds
or will hold all such assets and such other assets included in the
definition of the Trust Fund in trust for the exclusive use
and benefit of all present and future Certificateholders.
If,
in
the course of its review, the Custodian finds any document constituting a part
of a Mortgage File to be missing or incomplete, the Seller shall promptly
correct or cure such defect within 90 days from the date it was so notified
of
such defect and, if the Seller does not correct or cure such defect within
such
period and such defect materially and adversely affects the interests of
Certificateholders in the related Mortgage Loan, the Seller shall either (a)
substitute for the related Mortgage Loan a Qualified Substitute Mortgage Loan,
which substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.03, or (b) repurchase such Mortgage Loan
within 90 days from the date the Seller was notified of such defect in writing
at the Purchase Price of such Mortgage Loan; or such longer period not to exceed
720 days from the Closing Date if the substitution or repurchase of a Mortgage
Loan pursuant to this provision is required by reason of a delay in delivery
of
any documents by the appropriate recording office; provided,
however,
that the
Seller shall have no liability for recording any Assignment of Mortgage in
favor
of the Trustee or for the Servicer’s failure to record such Assignment of
Mortgage, and provided,
further,
that the
Seller shall not be obligated to repurchase or cure any Mortgage Loan solely
as
a result of the Servicer’s failure to record such Assignment of Mortgage. The
Trust Administrator shall direct the Custodian to deliver to each Rating Agency
written notice within 270 days from the Closing Date indicating each Mortgage
Loan (a) for which a mortgage or assignment of mortgage required to be recorded
hereunder has not been returned by the appropriate recording office or (b)
as to
which the Custodian has been notified that there is a dispute as to location
or
status of such Mortgage Loan. Such notice shall be delivered every 90 days
thereafter until the related Mortgage Loan is returned to the Custodian. Any
such substitution pursuant to (a) above or purchase pursuant to (b) above shall
not be effected prior to the delivery to the Trustee and the Trust Administrator
of the Opinion of Counsel required by Section 2.05 hereof, if any, and any
substitution pursuant to (a) above shall not be effected prior to the additional
delivery to the Trustee or the Trust Administrator of a Request for Release
substantially in the form of Exhibit
L.
No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such Mortgage
Loan
shall be deposited by the Seller in the Certificate Account on or prior to
the
Business Day immediately preceding such Distribution Date in the month following
the month of repurchase and, upon receipt of such deposit and certification
with
respect thereto in the form of Exhibit
L
hereto,
the Trustee shall cause the Custodian to release the related Mortgage File
to
the Seller and shall execute and deliver at such entity’s request such
instruments of transfer or assignment prepared by such entity, in each case
without recourse, as shall be necessary to vest in such entity, or a designee,
the Trustee’s interest in any Mortgage Loan released pursuant
hereto.
46
If
pursuant to the preceding paragraph the Seller repurchases a Mortgage Loan
that
is a MERS Mortgage Loan, the Servicer shall, at the Seller’s expense, either (i)
cause MERS to execute and deliver an Assignment of Mortgage in recordable form
to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage
to be removed from registration on the MERS®
System
in accordance with MERS’ rules and regulations or (ii) cause MERS to designate
on the MERS®
System
the Seller as the beneficial holder of such Mortgage Loan.
(b) It
is
understood and agreed that the obligation of the Seller to cure, substitute
for
or to repurchase any Mortgage Loan which does not meet the requirements of
Section 2.01 shall constitute the sole remedy respecting such defect available
to the Trustee, the Trust Administrator, the Depositor and any Certificateholder
against the Seller.
SECTION
2.03
|
Representations
and Warranties of the Seller and the Master
Servicer.
|
(a) Each
of
DLJMC, in its capacity as Seller and Xxxxx Fargo, in its capacity as the Master
Servicer hereby makes the representations and warranties applicable to it set
forth in Schedule IIA and IIB, respectively, as applicable, hereto, and by
this
reference incorporated herein, to the Depositor, the Trustee and the Trust
Administrator, as of the Closing Date, or if so specified therein, as of the
Cut-off Date or such other date as may be specified.
(b) DLJMC,
in
its capacity as Seller hereby makes the representations and warranties set
forth
in Schedule IIIA applicable to the Mortgage Loans and by this reference
incorporated herein, to the Depositor, the Servicer, the Trustee and the Trust
Administrator, as of the Closing Date, or if so specified therein, as of the
Cut-off Date or such other date as may be specified, with respect to the
Mortgage Loans identified on Schedule I hereto. Any breach of the
representations and warranties set forth in Schedule IIIA(xxiii), IIIA(xxiv),
IIIA(xxvi) and IIIA(xxx) shall be deemed to materially and adversely affect
the
interests of the Certificateholders in that Mortgage Loan, notwithstanding
the
Seller’s lack of knowledge with respect to the substance of such representation
and warranty.
47
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty made pursuant to Section 2.03(b) that materially and adversely affects
the interests of the Certificateholders in any Mortgage Loan, the party
discovering such breach shall give prompt notice thereof to the other parties.
The Seller hereby covenants that within 90 days of the earlier of its discovery
or its receipt of written notice from any party of a breach of any
representation or warranty made by it pursuant to Section 2.03(b) that
materially and adversely affects the interests of the Certificateholders in
any
Mortgage Loan sold by the Seller to the Trust, it shall cure such breach in
all
material respects and, if such breach is not so cured, shall, (i) if such 90-day
period 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 Qualified Substitute Mortgage
Loan,
in the manner and subject to the conditions set forth in this Section; or (ii)
repurchase the affected Mortgage Loan or Mortgage Loans at the Purchase Price
in
the manner set forth below; provided,
however,
that any
such substitution pursuant to (i) above shall not be effected prior to the
delivery to the Trustee and the Trust Administrator of the Opinion of Counsel
required by Section 2.05 hereof, if any, and any such substitution pursuant
to
(i) above shall not be effected prior to the additional delivery to the Trustee
or the Trust Administrator of a Request for Release substantially in the form
of
Exhibit
L
relating
to the Deleted Mortgage Loan and the Mortgage File for any such Qualified
Substitute Mortgage Loan. Such Seller shall promptly reimburse the Trustee,
the
Trust Administrator and the Servicer for any actual out-of-pocket expenses
reasonably incurred by the Trustee, the Trust Administrator and the Servicer
in
respect of enforcing the remedies for such breach. With respect to any
representation and warranties described in this Section that are made to the
best of a Seller’s knowledge if it is discovered by any of the Depositor, the
Master Servicer, Seller, the Servicer, the Trustee or the Trust Administrator
that the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein, notwithstanding the
related Seller’s lack of knowledge with respect to the substance of such
representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
With
respect to any Qualified Substitute Mortgage Loan or Loans, the Seller 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(c), with the Mortgage
Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall not
be
part of the Trust Fund and shall be retained by the Seller on the next
succeeding Distribution Date. For the month of substitution, distributions
to
Certificateholders shall include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. The Seller 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
Qualified Substitute Mortgage Loan or Loans and the Seller shall deliver the
amended Mortgage Loan Schedule to the Trustee, the Servicer and the Trust
Administrator. Upon such substitution, the Qualified Substitute Mortgage Loan
or
Loans shall be subject to the terms of this Agreement in all respects, and
the
Seller shall be deemed to have made with respect to such Qualified Substitute
Mortgage Loan 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 Custodial Account of the
amount required to be deposited therein in connection with such substitution
as
described in the following paragraph, the Trustee shall instruct the Custodian
to release the Mortgage File held for the benefit of the Certificateholders
relating to such Deleted Mortgage Loan to the Seller and the Trustee shall
execute and deliver at the Seller’s direction such instruments of transfer or
assignment prepared by the Seller, in each case without recourse, as shall
be
necessary to vest title in the Seller, or its designee, the Trustee’s interest
in any Deleted Mortgage Loan substituted for pursuant to this Section
2.03.
48
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Servicer shall determine
the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due
in
the month of substitution). The amount of such shortage (the “Substitution
Adjustment Amount”)
plus
an amount equal to the aggregate of any unreimbursed Advances and Servicing
Advances and unpaid Servicing Fees with respect to such Deleted Mortgage Loans
shall be deposited in the Custodial Account by the Seller on or before the
Business Day immediately preceding the Distribution Date in the month succeeding
the calendar month during which the related Mortgage Loan became required to
be
repurchased or replaced hereunder.
One
or
more Mortgage Loans may be substituted for one or more Deleted Mortgage Loans.
The determination of whether a Mortgage Loan is a Qualified Substitute Mortgage
Loan may be satisfied on an individual basis. Alternatively, if more than one
Mortgage Loan is to be substituted for one or more Deleted Mortgage Loans,
the
characteristics of such Mortgage Loans and Deleted Mortgage Loans shall be
aggregated or calculated on a weighted average basis, as applicable, in
determining whether such Mortgage Loans are Qualified Substitute Mortgage
Loans.
In
the
event that the Seller shall have repurchased a Mortgage Loan, the Purchase
Price
therefor shall be deposited in the Custodial Account on or before the Business
Day immediately preceding the Distribution Date in the month following the
month
during which the Seller became obligated hereunder to repurchase or replace
such
Mortgage Loan and upon such deposit of the Purchase Price, the delivery of
the
Opinion of Counsel if required by Section 2.05 and receipt of a Request for
Release in the form of Exhibit
L
hereto,
the Trustee shall cause the Custodian to release the related Mortgage File
held
for the benefit of the Certificateholders to such Person, 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. It is understood and agreed that
the obligation under this Agreement of any Person to cure, repurchase or
substitute any Mortgage Loan as to which a breach has occurred and is continuing
shall constitute the sole remedy against such Persons respecting such breach
available to Certificateholders, the Depositor, the Trustee or the Trust
Administrator on their behalf.
The
representations and warranties made pursuant to this Section 2.03 shall survive
delivery of the respective Mortgage Files to the Trustee, the Trust
Administrator or the Custodian for the benefit of the
Certificateholders.
49
SECTION
2.04
|
Representations
and Warranties of the Depositor as to the Mortgage
Loans.
|
The
Depositor hereby represents and warrants to the Trustee with respect to the
Mortgage Loans that, as of the Closing Date, assuming good title has been
conveyed to the Depositor, the Depositor had good title to the Mortgage Loans
and Mortgage Notes, and did not encumber the Mortgage Loans during its period
of
ownership thereof, other than as contemplated by the Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the
Custodian.
SECTION
2.05
|
Delivery
of Opinion of Counsel in Connection with
Substitutions.
|
Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to Section
2.02 shall be made more than 90 days after the Closing Date unless the Seller
delivers to the Trustee and the Trust Administrator an Opinion of Counsel,
which
Opinion of Counsel shall not be at the expense of any of the Trustee, the Trust
Administrator or the Trust Fund, addressed to the Trustee and the Trust
Administrator, to the effect that such substitution will not (i) result in
the
imposition of the tax on “prohibited transactions” on the Trust Fund or
contributions after the Startup Date, as defined in Sections 860F(a)(2) and
860G(d) of the Code, respectively, or (ii) cause any REMIC hereunder to fail
to
qualify as a REMIC at any time that any Certificates are
outstanding.
SECTION
2.06
|
Issuance
of Certificates.
|
The
Trustee acknowledges the assignment to it of the Mortgage Loans together with
the assignment to it of all other assets included in the Trust Fund, receipt
of
which, subject to the provisions of Section 2.02(a), is hereby acknowledged.
Concurrently with such assignment and delivery and in exchange therefor, the
Trust Administrator, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has executed the Certificates and caused them
to
be authenticated and delivered to or upon the order of the Depositor in
authorized denominations which evidence ownership of the Trust Fund. The rights
of the Holders of such Certificates to receive distributions from the Trust
Fund
and all ownership interests of the Holders of the Certificates in such
distributions shall be as set forth in this Agreement.
SECTION
2.07
|
REMIC
Provisions.
|
(a) The
Depositor hereby elects and authorizes the Trust Administrator to treat the
Trust Fund as the number of separate REMICs specified in the Preliminary
Statement (each, a “REMIC”)
under
the Code and, if necessary, under applicable state law. Each such election
shall
be made on Form 1066 or other appropriate federal tax or information return
(including Form 8811) or any appropriate state return (x) for the taxable year
ending on the last day of the calendar year in which the Certificates are issued
and (y) for the taxable year ending on the last day of the calendar year in
which Certificates are first sold to a third party. The Closing Date is hereby
designated as the “startup day” of each REMIC created hereunder within the
meaning of Section 860G(a)(9) of the Code. The “regular interests” (within the
meaning of Section 860G of the Code) in the Master REMIC shall consist of the
Certificates (other than the Class AR Certificates). The Class AR Certificates
shall represent the beneficial ownership of the “residual interest” in each
REMIC. Neither the Depositor nor the Trust Administrator nor the Trustee shall
permit the creation of any “interests” (within the meaning of Section 860G of
the Code) in any REMIC other than the Certificates and the Subsidiary REMIC
Regular Interests.
50
(b) The
Trust
Administrator on behalf of the Holders of the Class AR Certificates, shall
act
as agent for the Class AR Certificateholder as the “tax matters person” (within
the meaning of the REMIC Provisions) for each REMIC in the manner provided
under
Treasury regulations section 1.860F-4(d) and temporary Treasury regulations
section 301.6231(a)(7)-1T. By its acceptance of a Class AR Certificate, each
Holder thereof shall have agreed to such appointment and shall have consented
to
the appointment of the Trust Administrator as its agent to act on behalf of
each
REMIC pursuant to the specific duties outlined herein.
(c) A
Holder
of the Class AR Certificates, by the purchase of such Certificates, shall be
deemed to have agreed to timely pay, upon demand by the Trust Administrator,
the
amount of any minimum California state franchise taxes due with respect to
each
REMIC created hereunder under Sections 23151(a) and 23153(a) of the California
Revenue and Taxation Code. Notwithstanding the foregoing, the Trust
Administrator shall be authorized to retain the amount of such tax from amounts
otherwise distributable to such Holder in the event such Holder does not
promptly pay such amount upon demand by the Trust Administrator. In the event
that any other federal, state or local tax is imposed, including without
limitation taxes imposed on a “prohibited transaction” of a REMIC as defined in
Section 860F of the Code, such tax shall be charged against amounts otherwise
available for distribution to the applicable Holder of a Class AR Certificate
and then against amounts otherwise available for distribution to the Holders
of
Regular Certificates in accordance with the provisions set forth in Section
4.01. The Trust Administrator or the Trustee shall promptly deposit in the
Certificate Account any amount of “prohibited transaction” tax that results from
a breach of the Trust Administrator’s or the Trustee’s duties, respectively,
under this Agreement. The Master Servicer or the Servicer shall promptly deposit
in the Certificate Account any amount of “prohibited transaction” tax that
results from a breach of the Master Servicer’s or such Servicer’s duties,
respectively, under this Agreement.
(d) The
Trust
Administrator shall act as attorney-in-fact and as agent on behalf of the tax
matters person of each REMIC created hereunder and in such capacity the Trust
Administrator shall: (i) prepare and file, or cause to be prepared and filed,
federal and state tax returns (which returns the Trustee shall sign) using
a
calendar year as the taxable year for each REMIC created hereunder when and
as
required by the REMIC Provisions and other applicable federal income tax laws
as
the direct representative of each such REMIC in compliance with the Code and
shall provide copies of such returns as required by the Code; (ii) make an
election, on behalf of each REMIC created hereunder, to be treated as a REMIC
on
the federal tax return of such REMIC for its first taxable year, in accordance
with the REMIC Provisions; and (iii) prepare and forward, or cause to be
prepared and forwarded, to the Certificateholders and to any governmental taxing
authority all information reports as and when required to be provided to them
in
accordance with the REMIC Provisions. The expenses of preparing and filing
such
returns shall be borne by the Trust Administrator. The Depositor, the Master
Servicer and the Servicer shall provide on a prompt and timely basis to the
Trust Administrator or its designee such information with respect to each REMIC
created hereunder as is in their possession and reasonably required or requested
by the Trust Administrator to enable it to perform its obligations under this
subsection.
51
In
its
capacity as attorney-in-fact and as agent on behalf of the tax matters person,
the Trust Administrator shall also: (A) act on behalf of each REMIC created
hereunder in relation to any tax matter or controversy involving the Trust
Fund,
(B) represent the Trust Fund in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority with
respect thereto and (C) cause to be paid solely from the sources provided herein
the amount of any taxes imposed on each REMIC created hereunder when and as
the
same shall be due and payable (but such obligation shall not prevent the Trust
Administrator or any other appropriate Person from contesting any such tax
in
appropriate proceedings and shall not prevent the Trust Administrator from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings).
(e) The
Trust
Administrator shall provide (i) to any transferor of a Residual Certificate
such
information as is necessary for the application of any tax relating to the
transfer of such Residual Certificate to any Person who is not a permitted
transferee, (ii) to the Certificateholders such information or reports as are
required by the Code or the REMIC Provisions including reports relating to
interest, original issue discount and market discount or premium and (iii)
to
the Internal Revenue Service the name, title, address and telephone number
of
the person who will serve as the representative of each REMIC created
hereunder.
(f) The
Trustee, to the extent directed by the Trust Administrator, the Depositor and
the Holder of the Class AR Certificates shall take any action or cause the
Trust
Fund to take any action necessary to create or maintain the status of each
REMIC
created hereunder as a REMIC under the REMIC Provisions and shall assist each
other as necessary to create or maintain such status. Neither the Trustee,
to
the extent directed or (in the case of a failure to act) not directed by the
Trust Administrator, nor the Holders of the Residual Certificates shall take
any
action, cause the Trust Fund to take any action or fail to take (or fail to
cause the Trust Fund to take) any action that, under the REMIC Provisions,
if
taken or not taken, as the case may be, could (i) endanger the status of each
REMIC created hereunder as a REMIC or (ii) result in the imposition of a tax
upon a REMIC (including, but not limited to, the tax on prohibited transactions
as defined in Code Section 860F(a)(2) and the tax on prohibited contributions
set forth in Section 860G(d) of the Code) (either such event, an “Adverse
REMIC Event”)
unless
the Trustee and the Trust Administrator have received an Opinion of Counsel
(at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition
of
such a tax.
The
Trustee and the Trust Administrator shall not take or fail to take any action
(whether or not authorized hereunder) as to which the Master Servicer, a
Servicer or the Depositor has advised it in writing that it has received an
Opinion of Counsel to the effect that an Adverse REMIC Event could occur with
respect to such action. In addition, prior to taking any action with respect
to
a REMIC or their assets, or causing any REMIC created hereunder to take any
action, which is not expressly permitted under the terms of this Agreement,
the
Trustee and the Trust Administrator shall consult with the Master Servicer,
the
Servicer and the Depositor or their designees, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect
to
any REMIC created hereunder and the Trustee and the Trust Administrator shall
not take any such action or cause that REMIC to take any such action as to
which
the Master Servicer, any Servicer or the Depositor has advised it in writing
that an Adverse REMIC Event could occur.
52
In
addition, prior to taking any action with respect to any REMIC created hereunder
or the assets therein, or causing any REMIC created hereunder to take any
action, which is not expressly permitted under the terms of this Agreement,
the
Holders of the Residual Certificates shall consult with the Trust Administrator
or its designee, in writing, with respect to whether such action could cause
an
Adverse REMIC Event to occur with respect to any REMIC created hereunder, and
no
such Person shall take any action or cause the Trust Fund to take any such
action as to which the Trust Administrator has advised it in writing that an
Adverse REMIC Event could occur. The Trust Administrator may consult with
counsel to make such written advice, and the cost of same shall be borne by
the
party seeking to take action not permitted by this Agreement.
At
all
times as may be required by the Code, the Trust Administrator shall to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of the REMICs as
“qualified mortgages” as defined in Section 860G(a)(3) of the Code and
“permitted investments” as defined in Section 860G(a)(5) of the
Code.
(g) In
the
event that any tax is imposed on “prohibited transactions” of any REMIC created
hereunder, as defined in Section 860F(a)(2) of the Code, on “net income from
foreclosure property” of such REMIC, as defined in Section 860G(c) of the Code,
on any contributions to a REMIC after the Startup Day therefor pursuant to
Section 860G(d) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, such tax shall be charged
(i)
to the Servicer, if such Servicer has in its sole discretion determined to
indemnify the Trust Fund against such tax or if such tax arises out of or
results from a breach of such Servicer’s duties under (x) Section 2.07(j) of
this Agreement to not enter into any arrangement by which a REMIC would receive
a fee or other compensation for services or to permit such REMIC to receive
any
income from assets other than “qualified mortgages” or “permitted investments”,
(y) Section 3.01 of this Agreement to not make or any modification, waiver
or
amendment of any Mortgage Loan which would cause any REMIC created hereunder
to
fail to qualify as a REMIC or result in the imposition of any tax under Section
860F(a) or Section 860G(d) of the Code or (z) this Agreement to not cause any
REO Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or to subject any REMIC created hereunder to
the
imposition of any federal, state or local income taxes on the income earned
from
such Mortgaged Property under Section 860G(c) of the Code of otherwise, (ii)
to
the Master Servicer, if such tax arises out of or results from a breach by
the
Master Servicer of any of its obligations under this Agreement or if the Master
Servicer has in its sole discretion determined to indemnify the Trust Fund
against such tax, (iii) to the Trust Administrator, if such tax arises out
of or
results from a breach by the Trust Administrator of any of its obligations
under
this Article II, (iv) to the Trustee, if such tax arises out of or results
from
a breach by the Trustee of any of its obligations under this Article II, or
(v)
otherwise against amounts on deposit in the Custodial Account as provided by
Section 3.08 and on the Distribution Date(s) following such reimbursement the
aggregate of such taxes shall be allocated in reduction of the Interest
Distribution Amount on each Class entitled thereto in the same manner as if
such
taxes constituted a Prepayment Interest Shortfall Amount.
53
In
accordance with Section 2.07(c), the Servicer, the Master Servicer, the Trust
Administrator or the Trustee, as applicable, shall promptly deposit in the
Certificate Account any amount of such tax.
For
purposes of this Section 2.07(g), a tax is imposed following the final and
unappealable determination under the Code of the amount of such tax and written
notice thereof by the Tax Matters Person to the party to be
charged.
(h) The
Trust
Administrator shall, for federal income tax purposes, maintain books and records
with respect to each REMIC created hereunder on a calendar year and on an
accrual basis or as otherwise may be required by the REMIC
Provisions.
(i) Following
the Startup Day, none of the Servicer, the Trustee (which shall act only at
the
direction of the Trust Administrator or as otherwise specifically provided
in
this Agreement) or the Trust Administrator shall accept any contributions of
assets to any REMIC created hereunder unless (subject to Section 2.05) such
Servicer, the Trustee or the Trust Administrator shall have received an Opinion
of Counsel (at the expense of the party seeking to make such contribution)
to
the effect that the inclusion of such assets in a REMIC will not cause that
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding, or subject that REMIC to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or
ordinances.
(j) None
of
the Servicer, the Trustee (which shall act only at the direction of the Trust
Administrator or as otherwise specifically provided in this Agreement) or the
Trust Administrator shall (subject to Section 2.05) enter into any arrangement
by which a REMIC will receive a fee or other compensation for services nor
permit such REMIC to receive any income from assets other than “qualified
mortgages” as defined in Section 860G(a)(3) of the Code or “permitted
investments” as defined in Section 860G(a)(5) of the Code.
(k) Within
30
days after the Closing Date, the Trust Administrator shall apply to the Internal
Revenue Service for an employer identification number for each REMIC created
hereunder by means of a Form SS-4 or other acceptable means and prepare and
file
with the Internal Revenue Service Form 8811, “Information Return for Real Estate
Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations” for each REMIC.
(l) None
of
the Trustee (which shall act only at the direction of the Trust Administrator
or
as otherwise specifically provided in this Agreement), the Trust Administrator,
the Master Servicer or the Servicer shall sell, dispose of or substitute for
any
of the Mortgage Loans (except in connection with (i) the default, imminent
default or foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by deed in lieu of
foreclosure, (ii) the bankruptcy of any REMIC created hereunder, (iii) the
termination of any REMIC created hereunder pursuant to Article X of this
Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or III
of
this Agreement) nor acquire any assets for a REMIC, nor sell or dispose of
any
investments in the Custodial Account or the Certificate Account for gain nor
accept any contributions to a REMIC after the Closing Date (a) unless it has
received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not affect adversely the status of any REMIC created hereunder
as a REMIC or (b) unless the Master Servicer or such Servicer has determined
in
its sole discretion to indemnify the Trust Fund against such tax.
54
(m) In
order
to enable the Trust Administrator to perform its duties as set forth herein,
the
Depositor shall provide, or cause to be provided to the Trust Administrator,
within ten days after the Closing Date, all information or data that the Trust
Administrator determines to be relevant for tax purposes to the valuations
and
offering prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flows of the Certificates and
the Mortgage Loans and the Trust Administrator shall be entitled to rely upon
any and all such information and data in the performance of its duties set forth
herein. Thereafter, the Master Servicer shall provide, promptly upon request
therefor, any such additional information or data that the Trustee or the Trust
Administrator may from time to time reasonably request in order to enable the
Trustee and the Trust Administrator to perform their duties as set forth herein
and the Trustee and the Trust Administrator shall be entitled to rely upon
any
and all such information and data in the performance of its duties set forth
herein. DLJMC shall indemnify the Trust Administrator and hold it harmless
for
any loss, liability, damage, claim or expense of the Trust Administrator arising
from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trust Administrator on a timely basis.
The
Master Servicer shall indemnify the Trustee and the Trust Administrator and
hold
it harmless for any loss, liability, damage, claim or expense of the Trustee
and
the Trust Administrator arising from any failure of the Master Servicer to
provide, or to cause to be provided, accurate information or data required
to be
provided by the Master Servicer to the Trustee and the Trust Administrator
on a
timely basis; provided,
however,
that if
the Servicer fails to provide such information to the Master Servicer upon
timely request for such information by the Master Servicer, the Servicer shall
indemnify each of the Master Servicer, the Trustee and the Trust Administrator
and hold it harmless for any loss, liability, damage, claim or expense of the
Master Servicer, the Trustee and the Trust Administrator arising from any
failure of that Servicer to provide, or to cause to be provided, the information
referred to above on a timely basis.
(n) The
Trust
Administrator shall treat the Basis Risk Reserve Fund as an outside reserve
fund
within the meaning of Treasury Regulation 1.860G-2(h) that is owned by the
Class
X Certificateholder, and not as an asset of any REMIC. The Trust Administrator
shall treat the rights of the Certificateholders (other than with respect to
the
Class X, Class P or Class AR Certificates) to receive payments from the Basis
Risk Reserve Fund as rights in an interest rate cap contract written by the
Class X Certificateholder in favor of such Certificateholders. Thus, each
Certificate (other than the Class X, Class P or Class AR Certificates) shall
be
treated as representing ownership of not only REMIC Regular Interests, but
also
ownership of an interest in interest rate cap contracts or a separate
contractual right. For purposes of determining the issue price of the REMIC
Regular interests, the Trust Administrator shall assume that the interest rate
cap contract has a value of $10,000.
55
SECTION
2.08
|
Covenants
of the Master Servicer and the
Servicer.
|
The
Master Servicer and the Servicer, severally and not jointly, hereby covenants
to
the Depositor, the Trustee and the Trust Administrator as follows:
(a) Each
of
the Servicer and the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and requirements
of
the insurer under each Mortgage Guaranty Insurance Policy; and
(b) No
written information, certificate of an officer, statement furnished in writing
or written report delivered to the Depositor, any affiliate of the Depositor,
the Trustee or the Trust Administrator and prepared by the Master Servicer
or
the Servicer pursuant to this Agreement will contain any untrue statement of
a
material fact.
56
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
SECTION
3.01
|
Master
Servicing of the Mortgage
Loans.
|
For
and
on behalf of the Certificateholders, as an independent contractor of the
Trustee, the Master Servicer shall, in accordance with this Section 3.01, master
service and administer the Mortgage Loans by overseeing and enforcing the
servicing of the Mortgage Loans by the Servicer according to the terms of the
Servicing Agreement. In connection with such servicing and administration of
the
Mortgage Loans, the Master Servicer shall have full power and authority, acting
alone and/or, with respect to the Servicer, through Sub-Servicers, to do or
cause to be done any and all things that it may deem necessary or desirable
in
connection with such servicing and administration, including but not limited
to,
the power and authority, subject to the terms hereof (i) to execute and deliver,
on behalf of the Certificateholders and the Trustee, customary consents or
waivers and other instruments and documents, (ii) to consent to transfers of
any
Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages
(but only in the manner provided in this Agreement), (iii) to collect any
Insurance Proceeds and other Liquidation Proceeds and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, provided
that
neither the Master Servicer nor the Servicer shall take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee, the Trust Administrator or the Certificateholders under
this Agreement. Each of the Master Servicer and the Servicer shall represent
and
protect the interests of the Trust Fund in the same manner as it protects its
own interests in mortgage loans in its own portfolio in any claim, proceeding
or
litigation regarding a Mortgage Loan, and shall not make or permit any
modification, waiver or amendment of any Mortgage Loan that would cause any
REMIC created hereunder to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master Servicer and the
Servicer, in its own name or in the name of the Depositor and the Trustee,
is
hereby authorized and empowered by the Depositor, the Trustee and the Trust
Administrator, when the Master Servicer or the Servicer believes it appropriate
in its reasonable judgment, to execute and deliver, on behalf of the Trustee,
the Trust Administrator, the Depositor, the Certificateholders or any of them,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to
the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Master Servicer and the Servicer shall
prepare and deliver to the Depositor and/or the Trustee and/or the Trust
Administrator such documents requiring execution and delivery by either or
both
of them as are necessary or appropriate to enable the Master Servicer or the
Servicer to master servicer and administer or service and administer the
Mortgage Loans, as applicable, to the extent that the Master Servicer or the
Servicer is not permitted to execute and deliver such documents pursuant to
the
preceding sentence. Upon receipt of such documents, the Depositor and/or the
Trustee or the Trust Administrator shall execute such documents and deliver
them
to the Master Servicer or such Servicer, as applicable.
57
SECTION
3.02
|
[Reserved]
|
SECTION
3.03
|
Trustee
to Act as Master Servicer.
|
In
the
event that the Master Servicer shall for any reason no longer be Master Servicer
hereunder (including by reason of an Event of Default hereunder), the Trustee
or
its successor shall thereupon assume all of the rights and obligations of the
Master Servicer hereunder and under the Servicing Agreement arising thereafter
(except that the Trustee shall not be (i) liable for losses of the Master
Servicer pursuant to Section 3.13 of the Servicing Agreement or any acts or
omissions of the related predecessor of the Master Servicer hereunder, (ii)
obligated to make Advances if it is prohibited from doing so by applicable
law,
(iii) obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder or under the Servicing Agreement, including but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03
hereof; (iv) deemed to have made any representations and warranties of the
Master Servicer hereunder or under the Servicing Agreement or (v) be obligated
to perform any obligation of the Master Servicer under Section 14.06, Section
14.07 or Section 14.08 hereof or under Section 5.04, 5.05 or 6.05 of the
Servicing Agreement with respect to any period of time during which the Trustee
was not acting as the Master Servicer). Any such assumption shall be subject
to
Section 8.02 hereof.
The
Servicer shall, upon request of the Trust Administrator, but at the expense
of
the Servicer, deliver to the assuming party all documents and records relating
to each Subservicing Agreement or substitute Subservicing Agreement and the
Mortgage Loans then being serviced thereunder and hereunder by the Servicer
and
an accounting of amounts collected or held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the Subservicing
Agreement or substitute Subservicing Agreement to the assuming
party.
SECTION
3.04
|
Certificate
Account.
|
(a) On
or
prior to the Closing Date, the Trust Administrator shall establish and maintain,
on behalf of the Certificateholders, the Certificate Account. The Trust
Administrator shall, promptly upon receipt, deposit in the Certificate Account
and retain therein the following:
the
aggregate amount remitted by the Servicer to the Master Servicer or Trust
Administrator pursuant to the Servicing Agreement;
all
Compensating Interest Payments remitted by the Master Servicer to the Trust
Administrator;
all
Advances remitted by the Master Servicer to the Trust Administrator;
and
any
other
amounts deposited hereunder that are required to be deposited in the Certificate
Account.
58
In
the
event that the Master Servicer or the Servicer shall remit to the Trust
Administrator any amount not required to be remitted, the Master Servicer or
the
Servicer, as applicable, may at any time direct the Trust Administrator to
withdraw such amount from the Certificate Account, any provision herein to
the
contrary notwithstanding. Such direction may be accomplished by delivering
an
Officer’s Certificate to the Trust Administrator that describes the amounts
deposited in error in the Certificate Account. All funds deposited in the
Certificate Account shall be held by the Trust Administrator in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.06. In no event shall the Trust
Administrator incur liability for withdrawals from the Certificate Account
at
the direction of the Master Servicer or the Servicer.
(b) Each
institution at which the Certificate Account is maintained shall either hold
such funds on deposit uninvested or shall invest the funds therein as directed
in writing by the Trust Administrator in Eligible Investments, which shall
mature not later than the Business Day immediately preceding the Distribution
Date, or on the Distribution Date, with respect to Eligible Investments invested
with an affiliate of the Trust Administrator, and, in each case, shall not
be
sold or disposed of prior to its maturity. All income and gain net of any losses
realized from any such investment of funds on deposit in the Certificate Account
shall be for the benefit of the Trust Administrator as compensation and shall
be
remitted to it monthly as provided herein. The amount of any realized losses
in
the Certificate Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Trust Administrator in the
Certificate Account.
SECTION
3.05
|
Access
to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections.
|
(a) The
Master Servicer shall afford the Depositor, the Trustee and the Trust
Administrator reasonable access to all records and documentation regarding
the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but
only
upon reasonable written request and during normal business hours at the office
designated by the Master Servicer.
SECTION
3.06
|
Permitted
Withdrawals from the Certificate
Account.
|
(a) The
Trust
Administrator shall withdraw funds from the Certificate Account for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that
it
is authorized to withhold pursuant to Section 2.07). In addition, the Trust
Administrator may from time to time make withdrawals from the Certificate
Account for the following purposes:
to
pay to
itself compensation for its services hereunder as set forth in Section 10.05
any
investment income earned for the related Distribution Date, and to pay to itself
or the Master Servicer any other amounts in respect of reimbursement of costs,
expenses, indemnification or other amounts to which it or the Master Servicer
is
entitled to reimbursement or payment under the terms of this
Agreement;
to
withdraw and return to the Master Servicer or the Servicer, in the case of
the
Servicer for deposit to the Custodial Account, any amount deposited in the
Certificate Account and not required to be deposited therein; and
59
to
clear
and terminate the Certificate Account upon termination of the Agreement pursuant
to Section 11.01 hereof.
SECTION
3.07
|
[Reserved]
|
SECTION
3.08
|
Trustee
and Trust Administrator to Cooperate; Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Trust Administrator shall immediately notify the Custodian,
by delivering, or causing to be delivered a “Request for Release” substantially
in the form of Exhibit
L.
Upon
the Custodian’s release of the related Mortgage File to the Servicer pursuant to
the Custodial Agreement, the Trustee shall within three Business Days of the
Servicer’s direction execute and deliver to such Servicer the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage, in each case provided by
the
Servicer. Expenses incurred in connection with any instrument of satisfaction
or
deed of reconveyance shall be chargeable to the related Mortgagor. From time
to
time and as shall be appropriate for the servicing or foreclosure of any
Mortgage Loan, including for such purpose, collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy or, for the purposes
of effecting a partial release of any Mortgaged Property from the lien of the
Mortgage or the making of any corrections to the Mortgage Note or the Mortgage
or any of the other documents included in the Mortgage File, the Servicer shall
provide to the Custodian a Request for Release substantially in the form of
Exhibit
L
signed
by a Servicing Officer, requesting release of the Mortgage File to the Servicer.
Subject to the further limitations set forth below, the Servicer shall cause
the
Mortgage File or documents so released to be returned to the Custodian when
the
need therefor by such Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the related Custodial
Account, in which case the Servicer shall deliver to the Custodian a Request
for
Release substantially in the form of Exhibit
L,
signed
by a Servicing Officer. Each Servicer is also authorized to cause the removal
from the registration on the MERS®
System
of such Mortgage and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction
or
cancellation or of partial or full release, including an assignment of such
loan
to the Trustee.
If
the
Servicer at any time seeks to initiate a foreclosure proceeding in respect
of
any Mortgaged Property related to a Mortgage Loan as authorized by this
Agreement, the Servicer shall deliver or cause to be delivered to the Trustee,
for signature, as appropriate, any court pleadings, requests for trustee’s sale
or other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies
or
rights provided by the Mortgage Note or the Mortgage or otherwise available
at
law or in equity.
SECTION
3.09
|
Master
Servicing Compensation.
|
(a) The
Master Servicer shall be compensated by the Trust Administrator as separately
agreed. The Master Servicer and any director, officer, employee or agent of
the
Master Servicer shall be indemnified by DLJMC (or if DLJMC shall fail to do
so,
by the Trust) and held harmless against any loss, liability or expense
(including reasonable attorney’s fees and expenses) incurred in connection with
any claim or legal action relating to (a) this Agreement, (b) the Certificates
or (c) the performance of any of the Master Servicer’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 Master Servicer’s
duties hereunder or incurred by reason of any action of the Master Servicer
taken at the direction of the Certificateholders; provided, however,
that
the sum of (x) such indemnity amounts payable by DLJMC or the Trust to the
Master Servicer pursuant to this and (y) the indemnity amounts payable by DLJMC
or the Trust to the Trust Administrator pursuant to Section 10.05, shall not
exceed $200,000 per year; provided, further,
that
any amounts not payable by DLJMC or the Trust to the Master Servicer due to
the
preceding proviso shall be payable by DLJMC (or if DLJMC fails to do so, by
the
Trust) in any succeeding year, subject to the aggregate $200,000 per annum
limitation imposed by the preceding proviso. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Master
Servicer hereunder.
60
SECTION
3.10
|
Access
to Certain Documentation.
|
The
Master Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Subordinate Certificates and
the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer or the
Servicer. Nothing in this Section shall limit the obligation of the Master
Servicer or the Servicer to observe any applicable law prohibiting disclosure
of
information regarding the Mortgagors and the failure of the Master Servicer
or
the Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section. Nothing in this
Section shall require the Master Servicer or the Servicer to collect, create,
collate or otherwise generate any information that it does not generate in
its
usual course of business.
SECTION
3.11
|
[Reserved].
|
61
SECTION
3.12
|
[Reserved].
|
SECTION
3.13
|
Designated
Mortgage Loans.
|
(a) For
and
on behalf of the Certificateholders, the Master Servicer shall oversee and
enforce the obligation of the Servicer to service and administer the Mortgage
Loans in accordance with the terms of the Servicing Agreement and shall have
full power and authority to do any and all things that it may deem necessary
or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act in a manner
consistent with this Agreement and with customary and usual standards of
practice of prudent mortgage loan master servicers. Furthermore, the Master
Servicer shall oversee and consult with the Servicer as necessary from
time-to-time to carry out the Master Servicer’s obligations hereunder, and shall
receive, review and evaluate all reports, information and other data provided
to
the Master Servicer by the Servicer.
The
Master Servicer shall terminate the rights and obligations of the Servicer
under
the Servicing Agreement upon the failure of such Servicer to perform any of
its
obligations under such Servicing Agreement, which failure results in an Event
of
Default as provided in Section 8.01 thereof. In the event the Servicer is
terminated pursuant to the preceding sentence, the Master Servicer shall notify
the Depositor and the Trust Administrator and shall either (a) select and engage
a successor servicer of the Mortgage Loans or (b) act as successor servicer
of
the Mortgage Loans. Such enforcement, including without limitation the legal
prosecution of claims, termination of the Servicing Agreement and the pursuit
of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
provided
that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
62
To
the
extent that the costs and expenses of the Master Servicer related to any
termination of the Servicer, appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer with respect to the Servicing
Agreement (including without limitation (i) all legal costs and expenses and
all
due diligence costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of an Event of Default by the Servicer
and (ii) all costs and expenses associated with the complete transfer of
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the
Mortgage Loans in accordance with this Agreement) are not fully reimbursed
by
the terminated Servicer, the Master Servicer shall be entitled to reimbursement
of such costs and expenses from the Trust.
(b) Each
month, if the Servicer fails to make a required Advance by the date such Advance
is required to be made under the Servicing Agreement, the Master Servicer shall
deposit in the amount of any required Advance in the Certificate
Account.
(c) Each
month, the Master Servicer shall make Compensating Interest Payments with
respect to the Mortgage Loans to the extent provided in Section
8.02.
SECTION
3.14
|
Indemnification
of Servicer and Master Servicer
|
The
Servicer agrees to indemnify and hold the Master Servicer harmless from and
against any and all losses, claims, expenses, costs, or liabilities (including
reasonable attorneys fees and court costs) incurred by the Master Servicer
as a
result of or in connection with the failure by the Servicer to perform the
obligations or responsibilities imposed upon or undertaken by the Servicer
under
this Agreement.
The
Master Servicer agrees to indemnify and hold the Servicer harmless from and
against any and all losses, claims, expenses, costs, or liabilities (including
reasonable attorneys fees and court costs) incurred by such Servicer as a result
of or in connection with the failure by the Master Servicer to perform the
obligations or responsibilities imposed upon or undertaken by the Master
Servicer under this Agreement.
63
ARTICLE
IV
PAYMENTS
AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION
4.01
|
Priorities
of Distribution.
|
(a) On
each
Distribution Date, the Trust Administrator shall distribute the Interest
Remittance Amount for such date in the following order of priority:
(i)
|
concurrently,
to the Senior Certificates (other than the Class AR Certificates),
pro
rata
based on amounts due, Current Interest and any Carryforward Interest
for
each such Class and such Distribution
Date;
|
(ii)
|
to
the Class M-1 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
(iii)
|
to
the Class M-2 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
(iv)
|
to
the Class M-3 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
(v)
|
to
the Class M-4 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution Date;
and
|
(vi)
|
for
application as part of Monthly Excess Cashflow for such Distribution
Date,
as provided in Section 4.01(c), any such Interest Remittance Amount
remaining after application pursuant to clauses (i) through (v) above
(such amount, “Monthly Excess Interest”) for such Distribution
Date.
|
(b) On
each
Distribution Date, the Trust Administrator shall distribute the Principal
Payment Amount as follows:
(I) On
each
Distribution Date, (a) prior to the Stepdown Date or (b) with respect to which
a
Trigger Event is in effect, in the following order of priority:
(A) first,
to the
Class AR Certificates, until its Class Principal Balance has been reduced to
zero;
(B) second,
concurrently, on a pro
rata
basis,
to the Senior Certificates (other than the Class AR Certificates), as
follows:
(i) the
Class
A-7 Senior Payment Amount to the Class A-7 Certificates, until its Class
Principal Balance has been reduced to zero; and
(ii) the
remainder to the Class A-1-A, Class A-1-B, Class A-2, Class A-3, Class A-4,
Class A-5 and Class A-6 Certificates, as follows:
64
(a) first,
to the
Class A-6 Certificates, the Class A-6 Lockout Distribution Amount, until its
Class Principal Balance has been reduced to zero;
(b) second,
to the
Class A-1-A and Class A-1-B Certificates, pro
rata
based on
their respective Class Principal Balances, until their Class Principal Balances
have been reduced to zero;
(c) third,
to the
Class A-2, Class A-3, Class A-4 and Class A-5 Certificates, sequentially and
in
that order, until the Class Principal Balance of each such Class has been
reduced to zero; and
(d) fourth,
to the
Class A-6 Certificates, until its Class Principal Balance has been reduced
to
zero;
provided
however,
that if
a Sequential Trigger Event is in effect, distributions pursuant to this clause
(I)(B) shall be allocated sequentially, first
to the
Class A-1-A and Class A-1-B Certificates pursuant to clause (I)(B)(ii)(b) above;
second
to the
Class A-2, Class A-3, Class A-4, Class A-5 and Class A-6 Certificates, pursuant
to clauses (I)(B)(ii)(c) and (d) above; and third,
to the
Class A-7 Certificates until its Class Principal Balance has been reduced to
zero;
(C) third,
to the
Class M-1 Certificates, until its Class Principal Balance has been reduced
to
zero;
(D) fourth,
to the
Class M-2 Certificates, until its Class Principal Balance has been reduced
to
zero;
(E) fifth,
to the
Class M-3 Certificates, until its Class Principal Balance has been reduced
to
zero;
(F) sixth,
to the
Class M-4 Certificates, until its Class Principal Balance has been reduced
to
zero; and
(G) seventh,
for
application as part of the Monthly Excess Cashflow for such distribution date,
as set forth in Section 4.01(c), any such Principal Payment Amount remaining
after application pursuant to clauses (A) through (F) above.
II. On
each
distribution date (a) on or after the Stepdown Date and (b) with respect to
which a Trigger Event is not in effect, in the following order of priority:
(A) first,
to the
Senior Certificates, the Senior Principal Payment Amount for such distribution
date concurrently, on a pro rata basis, to the Senior Certificates (other than
the Class AR Certificates) in accordance with the Senior Payment
Priority;
(B) second,
to the
Class M-1 Certificates, the
Class
M-1 Principal Payment Amount for such distribution date,
until
its Class Principal Balance has been reduced to zero;
65
(C) third,
to the
Class M-2 Certificates, the Class M-2 Principal Payment Amount for such
distribution date, until its Class Principal Balance has been reduced to
zero;
(D) fourth,
to the
Class M-3 Certificates, the Class M-3 Principal Payment Amount for such
distribution date, until its Class Principal Balance has been reduced to zero;
(E) fifth,
to the
Class M-4 Certificates, the Class M-4 Principal Payment Amount for such
distribution date, until its Class Principal Balance has been reduced to zero;
and
(F) sixth,
for
application as part of the Monthly Excess Cashflow for such distribution date,
as set forth in Section 4.01(c), any such Principal Payment Amount remaining
after application pursuant to clauses (A) through (E) above.
(c) On
each
Distribution Date, the Trust Administrator shall distribute the Monthly Excess
Cashflow for such date in the following order of priority:
(i) on
the
September 2006 Distribution Date, 100% of the Monthly Excess Interest to the
Class X Certificates;
(ii) beginning
with the Overcollateralization Commencement Date, until the aggregate Class
Principal Balance of the Certificates equals the Aggregate Loan Balance for
such
Distribution Date minus
the
Targeted Overcollateralization Amount for such date, on each distribution date
(a) prior to the Stepdown Date or (b) with respect to which a Trigger Event
is
in effect, to the extent of Monthly Excess Interest available for such
distribution date, to the Certificates, in the following order of
priority:
(A) first,
concurrently, on a pro
rata
basis,
to the Senior Certificates (other than the Class AR Certificates), in accordance
with the Senior Payment Priority:
(B) second,
to the
Class M-1 Certificates, until its Class Principal Balance has been reduced
to
zero;
(C) third,
to the
Class M-2 Certificates, until its Class Principal Balance has been reduced
to
zero;
(D) fourth,
to the
Class M-3 Certificates, until its Class Principal Balance has been reduced
to
zero;
(E) fifth,
to the
Class M-4 Certificates, until its Class Principal Balance has been reduced
to
zero; and
(F) sixth,
on each
Distribution Date on or after the Stepdown Date and with respect to which a
Trigger Event is not in effect, to fund any principal distributions required
to
be made on such Distribution Date set forth above in Section 4.01(b)(I) after
giving effect to the distribution of the Principal Payment Amount for such
date,
in accordance with the priorities set forth therein;
66
(iii) to
the
Class M-1 Certificates, any Deferred Amount for such Class;
(iv) to
the
Class M-2 Certificates, any Deferred Amount for such Class;
(v) to
the
Class M-3 Certificates, any Deferred Amount for such Class;
(vi) to
the
Class M-4 Certificates, any Deferred Amount for such Class;
(vii) to
the
Senior Certificates (other than the Class AR Certificates) pro
rata
based on
amounts due, any Basis Risk Shortfall for each such Class;
(viii) to
the
Class M-1 Certificates, any Basis Risk Shortfall for such Class;
(ix) to
the
Class M-2 Certificates, any Basis Risk Shortfall for such Class;
(x) to
the
Class M-3 Certificates, any Basis Risk Shortfall for such class;
(xi) to
the
Class M-4 Certificates, any Basis Risk Shortfall for such Class;
(xii) to
the
Basis Risk Reserve Fund, the amount necessary so that the amount in the Basis
Risk Reserve Fund equals the Basis Risk Reserve Fund Amount;
(xiii) to
the
Class X Certificates, the Class X Distribution Amount; and
(xiv) to
the
Class AR Certificates, any remaining amounts.
(d) Distributions
pursuant to Section 4.02(c)(vii) through (xii) on any Distribution Date shall
be
made after giving effect to withdrawals from the Interest Rate Cap Accounts
to
pay Basis Risk Shortfalls on such Distribution Date pursuant to Section
4.08(e).
(e) On
the
Closing Date, the Trust Administrator shall establish an account (the “Class P
Reserve Fund”), which shall be an Eligible Account and which shall be an asset
of the Master REMIC. The Class P Reserve Fund shall be entitled “Class P Reserve
Fund, Xxxxx Fargo Bank, N.A., as Trust Administrator, in trust, for the benefit
of the holders of the Credit Suisse First Boston Mortgage Securities Corp.,
TBW
Mortgage-Backed Trust Series 2006-4, TBW Mortgage-Backed Pass-Through
Certificates, Series 2006-4 Class P Certificates.” On the Closing Date, the
Depositor shall deposit $50 into the Class P Reserve Fund. On each Distribution
Date, the Trust Administrator shall withdraw any amounts then on deposit in
the
Certificate Account that represent Prepayment Premiums collected in connection
with the Principal Prepayment of any Mortgage Loans or amounts deposited therein
pursuant to Section 3.20 of the Servicing Agreement and shall distribute such
amounts to the Holder(s) of the Class P Certificates. On the first Distribution
Date immediately following the expiration of the latest Prepayment Premium
term
with respect to the Mortgage Loans and in no event later than the Distribution
Date in September 2011, to the extent of funds on deposit in the Class P Reserve
Fund, the Class P Certificates shall be entitled to a distribution of
$50.00.
67
SECTION
4.02
|
Allocation
of Losses.
|
(a) On
each
Distribution Date, the Trust Administrator shall determine the total of the
Applied Loss Amount, if any, for such Distribution Date. The Applied Loss Amount
for any Distribution Date shall be applied by reducing the Class Principal
Balance of each Class of Subordinate Certificates (other than the Class X
Certificates) beginning with the Class of Subordinate Certificates then
outstanding with the lowest relative payment priority, in each case until the
respective Class Principal Balance thereof has been reduced to zero. Any Applied
Loss Amount allocated to a Class of Subordinate Certificates shall be allocated
among the Subordinate Certificates of such Class in proportion to their
respective Percentage Interests.
(b) Any
allocation by the Trust Administrator of Realized Losses to a Certificate or
any
reduction in the Certificate Balance of a Certificate pursuant to this Section
4.02 shall be accomplished by reducing its Certificate Balance, immediately
following the distributions made on the related Distribution Date in accordance
with the definition of “Certificate Balance.”
SECTION
4.03
|
Recoveries.
|
(a) With
respect to any Class of Subordinate Certificates to which an Applied Loss Amount
has been allocated (including any such Class for which the related Class
Principal Balance has been reduced to zero), the Class Principal Balance of
such
Class shall be increased on any Distribution Date by the amount of Recoveries
for such Distribution Date beginning with the Class of Subordinate Certificates
with the highest relative payment priority, up to the amount of the Deferred
Amount for that Class. Any increase in a Class Principal Balance on a
Distribution Date pursuant to this Section 4.03(a) shall be made prior to giving
effect to distributions on that Distribution Date.
(b) Any
increase to the Class Principal Balance of a Class of Certificates shall
increase the Certificate Balance of the related Class pro
rata
in
accordance with each Certificate’s Percentage Interest.
SECTION
4.04
|
Monthly
Statements to
Certificateholders.
|
(a) Not
later
than each Distribution Date, the Trust Administrator shall prepare and cause
to
be made available to each Certificateholder, the Master Servicer, the Servicer,
the Trustee, the Depositor and each Rating Agency, a statement setting forth
with respect to the related distribution the items listed in Exhibit
S,
other
than items (i)(j), (ii)(j), (v)(n), (v)(t), (v)(z), (vi)(a)-(d) and
(vii)(a)-(g).
The
Trust
Administrator’s responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy
of
the information derived from the Master Servicer and the Servicer which shall
be
provided as required in Section 4.05.
On
each
Distribution Date, the Trust Administrator shall provide Bloomberg Financial
Markets, L.P. (“Bloomberg”)
cusip
level factors for each Class of Offered Certificates as of such Distribution
Date, using a format and media mutually acceptable to the Trust Administrator
and Bloomberg. In connection with providing the information specified in this
Section 4.04 to Bloomberg, the Trust Administrator and any director, officer,
employee or agent of the Trust Administrator shall be indemnified and held
harmless by DLJMC, to the extent, in the manner and subject to the limitations
provided in Section 9.05. The Trust Administrator shall also make the monthly
statements to Certificateholders available each month to each party referred
to
in Section 4.04(a) via the Trust Administrator’s website. The Trust
Administrator’s website can be accessed at xxxx://xxx.xxxxxxx.xxx or at such
other site as the Trust Administrator may designate from time to time. Persons
that are unable to use the above website are entitled to have a paper copy
mailed to them via first class mail by calling the Trust Administrator at
000-000-0000. The Trust Administrator shall have the right to change the way
the
reports referred to in this Section are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
to
the Certificateholders. The Trust Administrator shall provide timely and
adequate notification to all above parties and to the Certificateholders
regarding any such change. The Trust Administrator may fully rely upon and
shall
have no liability with respect to information provided by the Master Servicer
or
any Servicer.
68
(b) Upon
request, within a reasonable period of time after the end of each calendar
year,
the Trust 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 items (i)(c), (i)(d), (i)(g), (i)(k), (ii)(c),
(ii)(d), (ii)(g), (v)(a), (v)(b) and (v)(m) of Exhibit
S
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trust Administrator
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trust Administrator pursuant
to
any requirements of the Code as from time to time in effect.
SECTION
4.05
|
Servicer
and Master Servicer to
Cooperate.
|
The
Servicer shall provide to the Master Servicer the information set forth in
Exhibit
I
and any
other information the Master Servicer requires, in such form as the Master
Servicer shall reasonably request, or in such form as may be mutually agreed
upon between the Servicer and the Master Servicer, with respect to each Mortgage
Loan no later than twelve noon on the Data Remittance Date.
The
Master Servicer shall provide to the Trust Administrator the information set
forth in Exhibit
I,
in such
form as the Trust Administrator shall reasonably request no later than twelve
noon on the Data Remittance Date to enable the Trust Administrator to calculate
the amounts to be distributed to each Class of Certificates and otherwise
perform its distribution, accounting and reporting requirements
hereunder.
The
Servicer also shall provide to the Trust Administrator the information set
forth
in Exhibit
I,
solely
relating to Payoffs received during the related Prepayment Period, in such
form
as the Trust Administrator shall reasonably request, or in such form as may
be
mutually agreed upon between the Servicer and the Trust Administrator, with
respect to each Mortgage Loan no later than the Additional Data Remittance
Date,
to enable the Trust Administrator to calculate the amounts to be distributed
to
each Class of Certificates and otherwise perform its distribution, accounting
and reporting requirements hereunder.
69
SECTION
4.06
|
[Reserved]
|
SECTION
4.07
|
Basis
Risk Reserve Fund.
|
(a) On
the
Closing Date, the Trust Administrator shall establish and maintain in its name,
in trust for the benefit of the Holders of the Certificates. The Basis Risk
Reserve Fund 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 held by the Trust
Administrator pursuant to this Agreement.
(b) On
the
Closing Date, $5,000.00 shall be deposited by the Depositor into the Basis
Risk
Reserve Fund. On each Distribution Date, the Trust Administrator shall transfer
from the Certificate Account to the Basis Risk Reserve Fund pursuant to Section
4.01(c)(xii) the Required Basis Risk Reserve Fund Deposit. Amounts on deposit
in
the Basis Risk Reserve Fund shall be withdrawn by the Trust Administrator in
connection with any Distribution Date to fund the amounts required to be
distributed to holders of the Offered Certificates in respect of Basis Risk
Shortfalls. Any distributions of Monthly Excess Cashflow to the holders of
the
Offered Certificates pursuant to Sections 4.01(c)(vii) through (xi) shall be
deemed to have been deposited in the Basis Risk Reserve Fund and paid to such
holders. On any Distribution Date, any amounts on deposit in the Basis Risk
Reserve Fund in excess of the Required Basis Risk Reserve Fund Amount shall
be
distributed to the Class X Certificateholder pursuant to Section
4.01(c)(xiii).
(c) Funds
in
the Basis Risk Reserve Fund may be invested in Eligible Investments maturing
on
or prior to the next succeeding Distribution Date. Any net investment earnings
on such amounts shall be payable to the holders of the Class X
Certificates. The Trust Administrator shall account for the Basis Risk Reserve
Fund as an outside reserve fund within the meaning of Treasury regulation
1.860G-2(h) and not an asset of any REMIC created pursuant to this Agreement.
The Class X Certificates shall evidence ownership of the Basis Risk Reserve
Fund for federal tax purposes and the Holders thereof shall direct the Trust
Administrator in writing as to the investment of amounts therein. The Trust
Administrator shall treat amounts transferred by the Master REMIC to the Basis
Risk Reserve Fund as distributions to the Class X Certificateholder for all
federal tax purposes. In the absence of such written direction, all funds in
the
Basis Risk Reserve Fund shall remain uninvested. The Trust Administrator shall
have no liability for losses on investments in Eligible Investments made
pursuant to this Section 4.07(c) (other than as obligor on any such
investments). Upon termination of the Trust Fund, any amounts remaining in
the
Basis Risk Reserve Fund shall be distributed to the Holders of the Class X
Certificates in the same manner as if distributed pursuant to Section
4.01(c)(xiii).
On
the
Distribution Date immediately after the Distribution Date on which the aggregate
Class Principal Balance of the Certificates entitled to Basis Risk Shortfalls
equals zero, any amounts on deposit in the Basis Risk Reserve Fund not payable
on such Certificates shall be deposited into the Certificate Account and
distributed to the Holders of the Class X Certificates in the same manner
as if distributed pursuant to Section 4.01(c)(xiii).
70
SECTION
4.08
|
The
Interest Rate Cap Agreements
|
(a) On
the
Closing Date, the Trust Administrator shall establish and maintain in its name,
in trust for the benefit of the Certificateholders, the Interest Rate Cap
Accounts. The Interest Rate Cap Accounts shall be Eligible Accounts, 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
held by the Trust Administrator pursuant to this Agreement.
(b) The
Trust
Administrator is hereby directed by the Depositor, on or before the Closing
Date, on behalf of the Trust, to enter into the Interest Rate Cap Agreements
for
the benefit of the Holders of the Certificates. The Interest Rate Cap Agreements
shall be assets of the Trust Fund but shall not be assets of any REMIC. The
Trust Administrator shall administer to, and hold, and receive and make all
payments under, the Interest Rate Cap Agreements on behalf of the Trust and
the
Trustee in accordance with its terms and the provisions of this Agreement.
Neither the Trustee nor the Trust Administrator shall have any responsibility
for the contents, adequacy or sufficiency of either Interest Rate Cap Agreement,
including without limitation any representations and warranties contained
therein. Any funds payable by the Trust Administrator under the Interest Rate
Cap Agreements to the Interest Rate Cap Agreement Counterparty shall be paid
by
the Depositor. Notwithstanding anything to the contrary contained herein or
in
the Interest Rate Cap Agreements, neither the Trustee nor the Trust
Administrator shall be required to make any payments to the Interest Rate Cap
Agreement Counterparty under the Interest Rate Cap Agreements. The Trust
Administrator shall deposit any amounts received with respect to either Interest
Rate Cap Agreement into the related Interest Rate Cap Account. Notwithstanding
anything in this paragraph to the contrary, for any Distribution Date on which
there is a payment under the Class A-2 Interest Rate Cap Agreement based on
a
notional balance in excess of the Class Principal Balance of the Class A-2
Certificates, or a payment under the Class A-3 Interest Rate Cap Agreement
based
on a notional balance in excess of the Class Principal Balance of the Class
A-3
Certificates, the amount representing any such excess payment shall not be
an
asset of the Trust Fund but instead shall be paid into and distributed out
of a
separate trust created by this Agreement for the benefit of the Class X
Certificates and shall be distributed to the Class X Certificates pursuant
to
Section 4.01(c)(xiii).
The
Trust
Administrator shall prepare and deliver any notices required to be delivered
to
the Interest Rate Cap Agreement Counterparty under the Interest Rate Cap
Agreements.
The
Trust
Administrator shall terminate the Interest Rate Cap Agreement Counterparty
upon
the occurrence of an event of default under the related Interest Rate Cap
Agreement of which a Responsible Officer of the Trust Administrator has actual
knowledge. Upon such a termination, the Interest Rate Cap Agreement Counterparty
may be required to pay an amount to the Trust Administrator in respect of market
quotations for the replacement cost of the related Interest Rate Cap
Agreement.
On
each
Distribution Date, the Trust Administrator shall distribute amounts on deposit
in the Class A-2 Interest Rate Cap Account to pay any Basis Risk Shortfall
to
the Class A-2 Certificates, and amounts on deposit in the Class A-3 Interest
Rate Cap Account to pay any Basis Risk Shortfall to the Class A-3 Certificates,
in each case prior to giving effect to any withdrawals from the Basis Risk
Reserve Fund or from amounts available to be paid in respect of Basis Risk
Shortfalls as described in Section 4.01(c)(vii)on such Distribution
Date.
71
Funds
in
the Interest Rate Cap Accounts may be invested by the Trust Administrator at
the
direction of the Depositor in Eligible Investments maturing on or prior to
the
next succeeding Distribution Date. The Trust Administrator shall account for
the
Class A-3 Interest Rate Cap Account as an outside reserve fund within the
meaning of Treasury regulation 1.860G-2(h) and not an asset of any REMIC created
pursuant to this Agreement. The Trust Administrator shall treat amounts paid
from the Interest Rate Cap Accounts as payments made from outside the REMIC’s
for all federal tax purposes. Any net investment earnings on such amounts shall
be payable to the Class X Certificateholders. The Class X Certificateholders
shall be the owner of the Interest Rate Cap Accounts for federal tax purposes
and the Depositor shall direct the Trust Administrator in writing as to the
investment of amounts therein. In the absence of such written direction, all
funds in the Interest Rate Cap Accounts shall remain uninvested. The Trust
Administrator shall have no liability for losses on investments in Eligible
Investments made pursuant to this Section 4.09(f) (other than as obligor on
any
such investments). Upon termination of the Trust Fund, any amounts remaining
in
the Interest Rate Cap Accounts shall be distributed to the Class X
Certificateholders.
On
the
Distribution Date immediately after the Distribution Date on which the Class
Principal Balance of the Class A-2 Certificates equals zero, and on the
Distribution Date immediately after the Distribution Date on which the Class
Principal Balance of the Class A-3 Certificates equals zero, any amounts on
deposit in the Class A-2 Interest Rate Cap Account not payable on the Class
A-2
Certificates and any amounts on deposit in the Class A-3 Interest Rate Cap
Account not payable on the Class A-3 Certificates shall be distributed to the
Class X Certificateholders.
On
each
Distribution Date, the Trust Administrator shall distribute amounts in the
Interest Rate Cap Accounts not distributed pursuant to Section 4.09(e) on that
Distribution Date to the Class X Certificateholders.
72
ARTICLE
V
[Reserved]
73
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01
|
The
Certificates.
|
The
Certificates shall be in substantially the forms set forth in Exhibits
A
through
H
hereto,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Agreement or as may in the reasonable
judgment of the Trust Administrator or the Depositor be necessary, appropriate
or convenient to comply, or facilitate compliance, with applicable laws, and
may
have such letters, numbers or other marks of identification and such legends
or
endorsements placed thereon as may be required to comply with the rules of
any
securities exchange on which any of the Certificates may be listed, or as may,
consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution thereof.
Subject
to Section 11.02 respecting the final distribution on the Certificates, on
each
Distribution Date the Trust 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 (i) such Holder
has
so notified the Trust Administrator at least five Business Days prior to the
related Record Date and (ii) such Holder shall hold (A) a Notional Amount
Certificate, (B) 100% of the Class Principal Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first class
mail to such Certificateholder at the address of such holder appearing in the
Certificate Register.
The
definitive Certificates shall be printed, typewritten, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which any of the
Certificates may be listed, all as determined by the officers executing such
Certificates, as evidenced by their execution thereof.
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 which must be in excess of the applicable
minimum denomination) and aggregate denominations per Class set forth in the
Preliminary Statement.
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trust Administrator by a Responsible Officer. Certificates bearing the manual
or
facsimile signatures of individuals who were, at the time when such signatures
were affixed, authorized to sign on behalf of the Trust Administrator shall
bind
the Trust Administrator, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the authentication and delivery of
such
Certificates or did not hold such offices at the date of such Certificate.
No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication executed by the Trust Administrator by manual signature, and
such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
74
SECTION
6.02
|
Registration
of Transfer and Exchange of
Certificates.
|
(a) The
Trust
Administrator shall maintain, or cause to be maintained, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the Trust
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 Trust Administrator shall
execute, authenticate and deliver, in the name of the designated transferee
or
transferees, one or more new Certificates in like aggregate interest and of
the
same Class.
(b) At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of authorized denominations and the same aggregate interest in
the
Trust Fund and of the same Class, upon surrender of the Certificates to be
exchanged at the office or agency of the Trust Administrator set forth in
Section 6.06. Whenever any Certificates are so surrendered for exchange, the
Trust 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 Trust Administrator duly executed by the Holder thereof or his attorney
duly
authorized in writing.
(c) 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.
(d) All
Certificates surrendered for registration of transfer and exchange shall be
canceled and subsequently destroyed by the Trust Administrator in accordance
with the Trust Administrator’s customary procedures.
(e) No
transfer of any Private Certificate shall be made unless that transfer is made
pursuant to an effective registration statement under the 1933 Act and effective
registration or qualification under applicable state securities laws, or is
made
in a transaction which does not require such registration or qualification.
Except in connection with any transfer of a Private Certificate by the Depositor
to any affiliate or any transfer of a Private Certificate from the Depositor
or
an affiliate of the Depositor to an owner trust or other entity established
by
the Depositor, in the event that a transfer is to be made in reliance upon
an
exemption from the 1933 Act and such laws, in order to assure compliance with
the 1933 Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder’s prospective transferee shall each certify
to the Trust Administrator in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit M (the “Transferor
Certificate”) and (i) deliver a letter in substantially the form of either
(A) Exhibit N-1 (the “Investment Letter”), provided that all of the Private
Certificates of a Class shall be transferred to one investor or the
Depositor otherwise consents to such transfer, (B) Exhibit N-2 (the
“Rule 144A Letter”) or (C) Exhibit N-3 (the “Regulation S
Letter”) or (ii) there shall be delivered to the Trust Administrator at the
expense of the transferor an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the 1933 Act and the Depositor consents to such
transfer. The Depositor 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) or Regulation S, as applicable, for transfer of any
such Certificate without registration thereof under the 1933 Act pursuant to
the
registration exemption provided by Rule 144A or Regulation S. The
Trust Administrator shall cooperate with the Depositor in providing the
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trust Administrator, the Depositor, the Seller, the Master
Servicer and the Servicer 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.
75
(f) No
transfer of an ERISA Restricted Certificate shall be made unless the Trust
Administrator shall have received in accordance with Exhibit N-1, Exhibit N-2,
Exhibit N-3 or Exhibit O, as applicable, either (i) a representation letter
from the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such transferee
is
not an employee benefit plan or other retirement arrangement subject to Section
406 of ERISA or Section 4975 of the Code, or a person using the assets of any
such plan or other retirement arrangement (“Plan”), which representation letter
shall not be an expense of the Trust Administrator or the Trust Fund,
(ii) if the purchaser is an insurance company and the Certificate has been
the subject of an ERISA-Qualifying Underwriting, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an “insurance company general account” (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE
95-60”)) and that the purchaser and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
Certificate presented for registration in the name of a Plan, an Opinion of
Counsel satisfactory to the Trust Administrator to the effect that the purchase
or holding of such Certificate will not result in prohibited transactions under
Section 406 of ERISA and/or Section 4975 of the Code and will not subject the
Depositor, the Trustee, the Trust Administrator, the Master Servicer, the
Servicer or any other servicers to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of such parties or the Trust Fund. In the event the representations referred
to
in the preceding sentence are not furnished, such representations shall be
deemed to have been made to the Trust Administrator by the transferee’s
acceptance of an ERISA-Restricted Certificate by any beneficial owner who
purchases an interest in such Certificate in book-entry form. In the event
that
a representation is violated, or any attempt to transfer an ERISA-Restricted
Certificate to a Plan is attempted without the delivery to the Trust
Administrator of the Opinion of Counsel described above, the attempted transfer
or acquisition of such Certificate shall be void and of no effect.
76
(g) Additional
restrictions on transfers of the Residual Certificates to Disqualified
Organizations are set forth below:
(i)
|
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 to have irrevocably authorized the Trust Administrator or its
designee
under clause (iii)(A) below to deliver payments to a Person other
than
such Person and to negotiate the terms of any mandatory sale under
clause
(iii)(B) below and to execute all instruments of transfer and to
do all
other things necessary in connection with any such sale. The rights
of
each Person acquiring any ownership interest in a Residual Certificate
are
expressly subject to the following
provisions:
|
(ii)
|
Each
Person holding or acquiring any ownership interest in a Residual
Certificate shall be other than a Disqualified Organization and shall
promptly notify the Trust Administrator of any change or impending
change
in its status as other than a Disqualified
Organization.
|
(iii)
|
In
connection with any proposed transfer of any ownership interest in
a
Residual Certificate to a U.S. Person, the Trust Administrator shall
require delivery to it, and shall not register the transfer of a
Residual
Certificate until its receipt of (1) an affidavit and agreement (a
“Transferee
Affidavit and Agreement”
attached hereto as Exhibit
O)
from the proposed transferee, in form and substance satisfactory
to the
Trust Administrator, representing and warranting, among other things,
that
it is not a non-U.S. Person, that such transferee is other than a
Disqualified Organization, that it is not acquiring its ownership
interest
in a Residual Certificate that is the subject of the proposed Transfer
as
a nominee, trustee or agent for any Person who is not other than
a
Disqualified Organization, that for so long as it retains its ownership
interest in a Residual Certificate, it will endeavor to remain other
than
a Disqualified Organization, and that it has reviewed the provisions
of
this Section 6.02(g) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit
P,
from the Holder wishing to transfer a Residual Certificate, in form
and
substance satisfactory to the Trust Administrator, representing and
warranting, among other things, that no purpose of the proposed transfer
is to allow such Holder to impede the assessment or collection of
tax.
|
(iv)
|
Notwithstanding
the delivery of a Transferee Affidavit and Agreement by a proposed
transferee under clause (B) above, if the Trust Administrator has
actual
knowledge that the proposed transferee is not other than a Disqualified
Organization, no transfer of an ownership interest in a Residual
Certificate to such proposed transferee shall be
effected.
|
77
(v)
|
Each
Person holding or acquiring any ownership interest in a Residual
Certificate agrees, by holding or acquiring such ownership interest,
to
require a Transferee Affidavit and Agreement from the other Person
to whom
such Person attempts to transfer its ownership interest and to provide
a
certificate to the Trust Administrator in the form attached hereto
as
Exhibit
P.
|
(vi)
|
The
Trust Administrator shall register the transfer of any Residual
Certificate only if it shall have received the Transferee Affidavit
and
Agreement, a certificate of the Holder requesting such transfer in
the
form attached hereto as Exhibit
P
and all of such other documents as shall have been reasonably required
by
the Trust Administrator as a condition to such
registration.
|
(vii)
|
If
any Disqualified Organization shall become a Holder of a Residual
Certificate, then the last preceding Holder that was other than a
Disqualified Organization shall be restored, to the extent permitted
by
law, to all rights and obligations as Holder thereof retroactive
to the
date of registration of such transfer of such Residual Certificate.
If any
non-U.S. Person shall become a Holder of a Residual Certificate,
then the
last preceding Holder that is a U.S. Person shall be restored, to
the
extent permitted by law, to all rights and obligations as Holder
thereof
retroactive to the date of registration of the transfer to such non-U.S.
Person of such Residual Certificate. If a transfer of a Residual
Certificate is disregarded pursuant to the provisions of Treasury
Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding
Holder that was other than a Disqualified Organization shall be restored,
to the extent permitted by law, to all rights and obligations as
Holder
thereof retroactive to the date of registration of such transfer
of such
Residual Certificate. The Trust Administrator shall be under no liability
to any Person for any registration of transfer of a Residual Certificate
that is in fact not permitted by this Section 6.02(g) or for making
any
payments due on such Certificate to the Holder thereof or for taking
any
other action with respect to such Holder under the provisions of
this
Agreement.
|
(viii)
|
If
any purported transferee of a Residual Certificate shall become a
Holder
of a Residual Certificate in violation of the restrictions in this
Section
6.02(g) and to the extent that the retroactive restoration of the
rights
of the Holder of such Residual Certificate as described in clause
(iii)(A)
above shall be invalid, illegal or unenforceable, then the Depositor
shall
have the right, without notice to the Holder or any prior Holder
of such
Residual Certificate, to sell such Residual Certificate to a purchaser
selected by the Depositor on such terms as the Depositor may choose.
Such
purported transferee shall promptly endorse and deliver a Residual
Certificate in accordance with the instructions of the Depositor.
Such
purchaser may be the Depositor itself or any affiliate of the Depositor.
The proceeds of such sale, net of the commissions (which may include
commissions payable to the Depositor or its affiliates), expenses
and
taxes due, if any, shall be remitted by the Depositor to such purported
transferee. The terms and conditions of any sale under this clause
(iii)(B) shall be determined in the sole discretion of the Depositor,
and
the Depositor shall not be liable to any Person having an ownership
interest or a purported ownership interest in a Residual Certificate
as a
result of its exercise of such
discretion.
|
78
The
Master Servicer and each Servicer, on behalf of the Trust Administrator, shall
make available, upon written request from the Trust Administrator, all
information reasonably available to it that is necessary to compute any tax
imposed (A) as a result of the transfer of an ownership interest in a Residual
Certificate to any Person who is not other than a Disqualified Organization,
including the information regarding “excess inclusions” of such Residual
Certificate required to be provided to the Internal Revenue Service and certain
Persons as described in Treasury Regulation Section 1.860D-1(b)(5), and (B)
as a
result of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organizations described in Section
1381 of the Code having as among its record holders at any time any Person
who
is not other than a Disqualified Organization. Reasonable compensation for
providing such information may be required by the Master Servicer, the Trust
Administrator or the Servicer from such Person.
The
provisions of this Section 6.02(g) set forth prior to this subsection (viii)
may
be modified, added to or eliminated by the Depositor, provided
that
there shall have been delivered to the Trust Administrator the
following:
(ix)
|
written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such
Rating
Agency to downgrade its then-current rating of the Certificates;
and
|
(x)
|
a
certificate of the Depositor stating that the Depositor has received
an
Opinion of Counsel, in form and substance satisfactory to the Depositor,
to the effect that such modification, addition to or elimination
of such
provisions will not cause the Trust Fund to cease to qualify as a
REMIC
and will not create a risk that (i) the Trust Fund may be subject
to an
entity-level tax caused by the transfer of a Residual Certificate
to a
Person which is not other than a Disqualified Organization or (2)
a
Certificateholder or another Person will be subject to a REMIC-related
tax
caused by the transfer of the Residual Certificate to a Person which
is
not other than a Disqualified
Organization.
|
79
(xi)
|
The
following legend shall appear on each Residual
Certificate:
|
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE DEPOSITOR AND
THE
TRUST ADMINISTRATOR THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES,
ANY
STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), OR (C) BEING
HEREINAFTER REFERRED TO AS A “DISQUALIFIED
ORGANIZATION”),
OR
(D) AN AGENT OF A DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
SUCH
AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION
OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO
A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
(h) The
Trust
Administrator shall have no liability to the Trust Fund arising from a transfer
of any such Certificate in reliance upon a certification, ruling or Opinion
of
Counsel described in this Section 6.02; provided,
however,
that the
Trust Administrator shall not register the transfer of any Residual Certificate
if it has actual knowledge that the proposed transferee does not meet the
qualifications of a permitted Holder of a Residual Certificate as set forth
in
this Section 6.02.
SECTION
6.03
|
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(a)
any mutilated Certificate is surrendered to the Trust Administrator, or the
Trust Administrator receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (b) there is delivered to each Servicer,
the Trustee and the Trust Administrator such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Trustee and the Trust Administrator that such Certificate has been
acquired by a bona fide purchaser, the Trust 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 tenor and
interest in the Trust Fund. In connection with the issuance of any new
Certificate under this Section 6.03, the Trust 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 Trust Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 6.03 shall constitute complete
and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
80
SECTION
6.04
|
Persons
Deemed Owners.
|
Prior
to
due presentation of a Certificate for registration of transfer, each Servicer,
the Trust Administrator, and any agent of the Master Servicer or any Servicer,
the Trust 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 none of the Master Servicer or the Servicer, the Trust
Administrator, nor any agent of the Master Servicer or a Servicer or the Trust
Administrator shall be affected by any notice to the contrary.
SECTION
6.05
|
Access
to List of Certificateholders’ Names and
Addresses.
|
(a) If
three
or more Certificateholders (i) request in writing from the Trust Administrator
a
list of the names and addresses of Certificateholders, (ii) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and
(iii)
provide a copy of the communication which such Certificateholders propose to
transmit, then the Trust Administrator shall, within ten Business Days after
the
receipt of such request, afford such Certificateholders access during normal
business hours to a current list of the Certificateholders. The expense of
providing any such information requested by a Certificateholder shall be borne
by the Certificateholders requesting such information and shall not be borne
by
the Trust Administrator or the Trustee. Every Certificateholder, by receiving
and holding a Certificate, agrees that the Trustee and the Trust 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.
(b) The
Master Servicer and each Servicer, so long as it is a servicer hereunder, the
Seller and the Depositor shall have unlimited access to a list of the names
and
addresses of the Certificateholders which list shall be provided by the Trust
Administrator promptly upon request.
SECTION
6.06
|
Maintenance
of Office or Agency.
|
The
Trust
Administrator shall maintain or cause to be maintained at its expense an office
or offices or agency or agencies in Minneapolis, Minnesota where Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trust Administrator in respect of the Certificates
and this Agreement may be served. The Trust Administrator initially designates
its Corporate Trust Office as its office for such purpose. The Trust
Administrator shall give prompt written notice to the Certificateholders of
any
change in the location of any such office or agency.
81
SECTION
6.07
|
Book-Entry
Certificates.
|
Notwithstanding
the foregoing, the Book-Entry Certificates, upon original issuance, shall be
issued in the form of one or more typewritten Certificates representing the
Book-Entry Certificates, to be delivered to DTC, the initial Clearing Agency,
by, or on behalf of, the Depositor. The Book-Entry Certificates shall initially
be registered on the Certificate Register in the name of Cede & Co., the
nominee of DTC, as the initial Clearing Agency, and no Beneficial Holder will
receive a definitive certificate representing such Beneficial Holder’s interest
in the Certificates, except as provided in Section 6.09. Unless and until
definitive, fully registered Certificates (“Definitive
Certificates”)
have
been issued to the Beneficial Holders pursuant to Section 6.09:
(a) the
provisions of this Section 6.07 shall be in full force and effect with respect
to the Book-Entry Certificates;
(b) the
Depositor and the Trust Administrator may deal with the Clearing Agency for
all
purposes with respect to the Book-Entry Certificates (including the making
of
distributions on such Certificates) as the sole Holder of such
Certificates;
(c) to
the
extent that the provisions of this Section 6.07 conflict with any other
provisions of this Agreement, the provisions of this Section 6.07 shall control;
and
(d) the
rights of the Beneficial Holders of the Book-Entry Certificates shall be
exercised only through the Clearing Agency and the Participants and shall be
limited to those established by law and agreements between such Beneficial
Holders and the Clearing Agency and/or the Participants. Pursuant to the
Depository Agreement, unless and until Definitive Certificates are issued
pursuant to Section 6.09, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Book-Entry Certificates to such
Participants.
For
purposes of any provision of this Agreement requiring or permitting actions
with
the consent of, or at the direction of, Holders of the Book-Entry Certificates
evidencing a specified percentage of the aggregate unpaid principal amount
of
such Certificates, such direction or consent may be given by the Clearing Agency
at the direction of Beneficial Holders owning such Certificates evidencing
the
requisite percentage of principal amount of such Certificates. The Clearing
Agency may take conflicting actions with respect to the Book-Entry Certificates
to the extent that such actions are taken on behalf of the Beneficial
Holders.
SECTION
6.08
|
Notices
to Clearing Agency.
|
Whenever
notice or other communication to the Holders of Book-Entry Certificates is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to the related Certificateholders pursuant to Section 6.09,
the
Trust Administrator shall give all such notices and communications specified
herein to be given to Holders of the Book-Entry Certificates to the Clearing
Agency which shall give such notices and communications to the related
Participants in accordance with its applicable rules, regulations and
procedures.
82
SECTION
6.09
|
Definitive
Certificates.
|
If
(a)
the Depositor advises the Trust Administrator in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
under the Depository Agreement with respect to the Certificates and the Trust
Administrator or the Depositor is unable to locate a qualified successor, (b)
the Depositor, at its option, advises the Trust Administrator in writing that
it
elects to terminate the book-entry system with respect to the Book-Entry
Certificates through the Clearing Agency or (c) after the occurrence of an
Event
of Default, Holders of Book-Entry Certificates evidencing not less than 66-2/3%
of the aggregate Class Principal Balance of the Book-Entry Certificates advise
the Trust Administrator in writing that the continuation of a book-entry system
with respect to the such Certificates through the Clearing Agency is no longer
in the best interests of the Holders of such Certificates with respect to the
Book-Entry Certificates, the Trust Administrator shall notify all Holders of
such Certificates of the occurrence of any such event and the availability
of
Definitive Certificates. Upon surrender to the Trust Administrator of the such
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trust Administrator shall
authenticate and deliver the Definitive Certificates. Neither the Depositor
nor
the Trust Administrator shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trust Administrator,
to
the extent applicable with respect to such Definitive Certificates, and the
Trust Administrator shall recognize the Holders of Definitive Certificates
as
Certificateholders hereunder.
83
ARTICLE
VII
THE
DEPOSITOR, THE SELLER, THE MASTER SERVICER AND,
THE
SERVICER
SECTION
7.01
|
Liabilities
of the Seller, the Depositor, the Master Servicer and, the
Servicer.
|
The
Depositor, the Seller, the Master Servicer and the Servicer shall each be liable
under this Agreement to any other party to this Agreement, including the
liability of the Servicer, to the Master Servicer, in accordance herewith only
to the extent of the obligations specifically and respectively imposed upon
and
undertaken by them herein.
SECTION
7.02
|
Merger
or Consolidation of the Seller, the Depositor or the Master
Servicer.
|
Subject
to the immediately succeeding paragraph, the Depositor, the Seller and the
Master Servicer each shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights and franchises
(charter and statutory) and shall 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.
Any
Person into which any such Person may be merged or consolidated, or any Person
resulting from any merger or consolidation to which any such Person shall be
a
party, or any Person succeeding to the business of the shall be the successor
of, 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 (i)
the successor or surviving Person to the Master Servicer shall be qualified
to
sell mortgage loans to, and to service mortgage loans on behalf of, FNMA or
FHLMC and (ii) the successor or surviving Person to TBW shall have a net
worth of at least $15,000,000, unless each of the Rating Agencies acknowledge,
at the expense of the successor or surviving person to TBW, that its rating
of
the Certificates in effect immediately prior to such assignment will not be
qualified or reduced as a result of such successor or surviving Person to TBW
not having a net worth of at least $15,000,000.
Notwithstanding
anything else in this Section 7.02 or in Section 7.04 hereof to the contrary,
the Master Servicer may assign its rights and delegate its duties and
obligations under this Agreement; provided,
however,
that the
Master Servicer gives the Depositor, the Trustee and the Trust Administrator
notice of such assignment; and provided
further,
(a)
that such purchaser or transferee accepting such assignment and delegation
shall
be an institution that is a FNMA and FHLMC approved seller/servicer in good
standing, which has a net worth of at least $15,000,000, and which is willing
to
service the Mortgage Loans and (b) such purchaser or transferee executes and
delivers to the Depositor, the Trustee and the Trust Administrator an agreement
accepting such delegation and assignment, which contains an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer, with like effect as if originally named
as a
party to this Agreement; and provided further,
that
each of the Rating Agencies acknowledge that its rating of the Certificates
in
effect immediately prior to such assignment will not be qualified or reduced
as
a result of such assignment and delegation. In the case of any such assignment
and delegation, the Master Servicer shall be released from its obligations
under
this Agreement (except as provided above), except that the Master Servicer
shall
remain liable for all liabilities and obligations incurred by it as the Master
Servicer hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the preceding sentence.
84
SECTION
7.03
|
Limitation
on Liability of the Seller, the Depositor, the Master Servicer and
Others.
|
None
of
the Depositor, the Master Servicer, the Seller, nor any of the directors,
officers, employees or agents of the Depositor, the Master Servicer or the
Seller 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 Master Servicer or the
Seller against any breach of representations or warranties made by it herein
or
protect the Depositor, the Master Servicer or the Seller or any such director,
officer, employee or agent from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor, the Master Servicer and the Seller and any
director, officer, employee or agent of the Depositor, the Master Servicer
or
the Seller may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor and the Seller and any director, officer, employee
or
agent of the Depositor or the Seller shall be indemnified by the Trust Fund
and
held harmless against any loss, liability or expense incurred in connection
with
any legal action or threatened legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason
of
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Master Servicer or the Seller shall be
under any obligation to appear in, prosecute or defend any legal action that
is
not incidental to their respective duties hereunder and which in its opinion
may
involve it in any expense or liability; provided,
however,
that the
Depositor, the Master Servicer or the Seller may in its discretion undertake
any
such action that it may deem necessary or desirable in respect of this Agreement
and the rights and duties of the parties hereto and interests of the Trustee,
the Trust Administrator and the Certificateholders hereunder. Anything in this
Agreement to the contrary notwithstanding, in no event shall the Master Servicer
be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Master
Servicer has been advised of the likelihood of such loss or damage and
regardless of the form of action.
SECTION
7.04
|
Master
Servicer Not to Resign; Transfer of
Servicing.
|
(a) The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (i) upon appointment of a successor master servicer and receipt
by
the Trustee and the Trust Administrator of a letter from each Rating Agency
that
such a resignation and appointment will not result in a downgrading of the
rating of any of the Certificates related to the applicable Mortgage Loans
or
(ii) upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination under clause (ii) permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
to such effect delivered to the Trustee and the Trust Administrator. No such
resignation shall become effective until the successor master servicer shall
have assumed the Master Servicer’s responsibilities, duties, liabilities and
obligations hereunder in accordance with Section 8.02 hereof.
85
(b) Notwithstanding
the foregoing, if the Trust Administrator shall for any reason no longer be
Trust Administrator hereunder, at DLJMC’s request, the Master Servicer shall
resign, upon the selection and appointment of a successor master servicer;
provided
that
DLJMC delivers to the Trustee and the Trust Administrator the letter required
in
Section 7.04(a)(i) above.
SECTION
7.05
|
Master
Servicer, Seller and Servicer May Own
Certificates.
|
Each
of
the Master Servicer, the Seller, and the Servicer 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 Master Servicer, a Seller, or the
Servicer.
86
ARTICLE
VIII
DEFAULT
SECTION
8.01
|
Events
of Default.
|
“Event
of Default,”
wherever used herein, and as to the Master Servicer, means any one of the
following events (whatever reason for such Event of Default and whether it
shall
be voluntary or involuntary or be effected by operation of law or pursuant
to
any judgment, decree or order of any court or any order, rule or regulation
of
any administrative or governmental body):
(a) any
failure by the Master Servicer to remit to the Trust Administrator any payment
other than an Advance required to be made by the Master Servicer under the
terms
of this Agreement, which failure shall continue unremedied for a period, one
Business Day, after the date upon which written notice of such failure shall
have been given to the Master Servicer by the Trust Administrator or the
Depositor or to the Master Servicer and the Trust Administrator by the Holders
of Certificates having not less than 25% of the Voting Rights evidenced by
the
Certificates; or
(b) any
failure by the Master Servicer to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Master Servicer
contained in this Agreement (except as set forth in (c) and (g) below) which
failure (i) materially affects the rights of the Certificateholders and (ii)
shall continue unremedied for a period of 60 days after the date on which
written notice of such failure shall have been given to the Master Servicer
or
the Servicer by the Trust Administrator or the Depositor, or to the Master
Servicer and the Trust Administrator by the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates;
or
(c) if
a
representation or warranty set forth in Section 2.03 hereof made solely in
its
capacity as the Master Servicer shall prove to be materially incorrect as of
the
time made in any respect that materially and adversely affects interests of
the
Certificateholders, and the circumstances or condition in respect of which
such
representation or warranty was incorrect shall not have been eliminated or
cured
within 90 days after the date on which written notice thereof shall have been
given to the Master Servicer and the Seller by the Trust Administrator for
the
benefit of the Certificateholders or by the Depositor; or
87
(d) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises for the appointment of a conservator or receiver or liquidator
in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days;
or
(e) the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or
all
or substantially all of the property of the Master Servicer; or
(f) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of, or commence a
voluntary case under, any applicable insolvency or reorganization statute,
make
an assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations;
(g) any
failure of the Master Servicer to make any Advance in the manner and at the
time
required to be made from its own funds pursuant to this Agreement and after
receipt of notice from the Trust Administrator, which failure continues
unremedied (i) with respect to the Master Servicer, after 5 p.m., New York
City
time, at the end of the Business Day immediately following the Master Servicer’s
receipt of such notice;
(h) [Reserved]
(i) [Reserved];
(j) [Reserved]
(k) (a)
either the master servicer rankings or ratings for the Master Servicer are
downgraded two or more levels below the level in effect on the Closing Date
by
one or more of the Rating Agencies rating the Certificates or (ii) the Master
Servicer rankings or ratings for the Master Servicer, are downgraded to “below
average” status by one or more of the Rating Agencies rating the Certificates or
(b) one or more Classes of the Certificates are downgraded or placed on
negative watch due in whole or in part to the performance or master servicing
of
the Master Servicer; or
(l) Any
failure by the Master Servicer to comply with the provisions of Article
XIV.
If
an
Event of Default due to the actions or inaction of the Master Servicer described
in clauses (a) through (f) and (l) of this Section shall occur, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, (i) the Trust Administrator shall at the direction of the Trustee
or
the Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates, by notice in writing to the Master Servicer
(with
a copy to the Rating Agencies), terminate all of the rights and obligations
of
the Master Servicer under this Agreement (other than rights to reimbursement
for
Advances and Servicing Advances previously made, as provided in the Servicing
Agreement) and (ii) the Master Servicer may, if such Event of Default is due
to
the actions or inactions of the Servicer, by notice in writing to the Servicer
(with a copy to the Rating Agencies), terminate all of the rights and
obligations of the Servicer under this Agreement (other than rights to
reimbursement for Advances and Servicing Advances previously made, as provided
in the Servicing Agreement).
If
an
Event of Default described in clause (g) shall occur, the Trustee shall prior
to
the next Distribution Date, immediately make such Advance and terminate the
rights and obligations of the Master Servicer hereunder and succeed to the
rights and obligations of the Master Servicer hereunder pursuant to Section
8.02, including the obligation to make Advances on such succeeding Distribution
Date pursuant to the terms hereof.
88
If
an
Event of Default described in clause (k) occurs, the Trustee shall at the
direction of DLJMC, by notice in writing to the Master Servicer, terminate
all
of the rights and obligations of the Master Servicer under this Agreement (other
than rights to reimbursement for Advances previously made, as provided in the
Servicing Agreement) and shall appoint as successor Master Servicer the entity
selected by DLJMC in accordance with Section 8.02, provided
DLJMC
shall first furnish to the Trustee a letter from each Rating Agency that the
appointment of such successor will not result in a downgrading of the rating
of
any of the Certificates.
No
Event
of Default with respect to the Servicer under the Servicing Agreement shall
affect the rights or duties of the Master Servicer or constitute an Event of
Default as to the Master Servicer.
SECTION
8.02
|
Master
Servicer to Act; Appointment of
Successor.
|
On
and
after the time the Master Servicer receives a notice of termination pursuant
to
Section 8.01 hereof, the Master Servicer resigns pursuant to Section 7.04 hereof
or the Servicer receives a notice of termination pursuant to the Servicing
Agreement or Section 8.01 hereof, subject to the provisions of Section 3.04
hereof, the Trustee (in the case of the Master Servicer), or the Master Servicer
(in the case of the Servicer), shall be the successor in all respects to the
Master Servicer or the Servicer, as applicable, in its capacity as Master
Servicer or Servicer under this Agreement and with respect to the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer or the Servicer, as applicable, by the terms and provisions hereof,
provided
that
Trustee or the Master Servicer, as applicable, shall not be deemed to have
made
any representation or warranty as to any Mortgage Loan made by the Master
Servicer or the Servicer, as applicable, and shall not effect any repurchases
or
substitutions of any Mortgage Loan; and provided,
further,
that it
is understood and acknowledged by the parties hereto that there will be a full
period of transition (not to exceed ninety (90) days) before the actual
servicing functions of the Servicer can be fully transferred to Xxxxx Fargo
as
successor Servicer and that during such period of transition Xxxxx Fargo, as
successor Servicer, shall continue to make all required Compensating Interest
Payments and Advances. As compensation therefor, the Trustee or the Master
Servicer, as applicable, shall be entitled to all funds relating to the Mortgage
Loans that the Master Servicer or the Servicer (the “Replaced
Servicer”)
would
have been entitled to charge to the related Custodial Account if the Replaced
Servicer had continued to act hereunder (except that the Replaced Servicer
shall
retain the right to be reimbursed for advances (including without limitation
Advances and Servicing Advances) theretofore made by the Replaced Servicer
with
respect to which it would be entitled to be reimbursed as provided in the
Servicing Agreement if it had not been so terminated or resigned).
Notwithstanding the foregoing, if the Trustee or the Master Servicer, as
applicable, has become the successor to a Replaced Servicer in accordance with
this Section 8.02, the Trustee or the Master Servicer, as applicable, may,
if it
shall be unwilling to so act, or shall, if it is unable to so act, 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, as the successor to the Master
Servicer or the Servicer, as applicable, hereunder in the assumption of all
or
any part of the responsibilities, duties or liabilities of the Master Servicer
or the Servicer, as applicable, provided
that
such successor to the Master Servicer or the Servicer, as applicable, shall
not
be deemed to have made any representation or warranty as to any Mortgage Loan
made by the Master Servicer or the Servicer, as applicable. Pending appointment
of a successor to the Master Servicer or Servicer, as applicable, hereunder,
the
Trustee or the Master Servicer, as applicable, unless such party is prohibited
by law from so acting, shall act in such capacity as provided herein. In
connection with such appointment and assumption, the Trustee or the Master
Servicer, as applicable, may make such arrangements for the compensation of
such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided,
however,
that no
such compensation shall be in excess of that permitted the Replaced Servicer
hereunder. The Trustee or the Master Servicer, as applicable, and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to
effectuate any such succession. None of the Trustee, the Master Servicer nor
any
other successor master servicer or 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 caused by the failure of a
Replaced Servicer to deliver, or any delay in delivering, cash, documents or
records to it.
89
A
Replaced Servicer that has been terminated shall, at the request of the Trustee
or the Master Servicer, as applicable, but at the expense of such Replaced
Servicer deliver to the assuming party all documents and records relating to
the
applicable Mortgage Loans and an accounting of amounts collected and held by
it
and otherwise use commercially reasonable efforts to effect the orderly and
efficient transfer and assignment of such servicing, but only to the extent
of
the Mortgage Loans serviced thereunder, to the assuming party. Notwithstanding
anything to the contrary contained herein, the termination of the Servicer
under
this Agreement shall not extend to any Sub-Servicer meeting the requirements
of
this Agreement and the Servicing Agreement and otherwise servicing the related
Mortgage Loans in accordance with the servicing provisions of this Agreement
and
the Servicing Agreement.
The
Master Servicer and the Servicer shall cooperate with the Trustee and the Master
Servicer, as applicable, and any other successor master servicer or servicer
in
effecting the termination of a Replaced Servicer’s responsibilities and rights
hereunder, including without limitation the transfer to such successor for
administration by it of all cash amounts that shall at the time be credited
by
such Servicer to the applicable Custodial Account or thereafter received with
respect to the Mortgage Loans.
Neither
the Trustee, the Master Servicer nor any other successor master servicer or
servicer shall be deemed to be in default hereunder by reason of any failure
to
make, or any delay in making, the distribution hereunder or any portion thereof
caused by (a) the failure of the Replaced Servicer to (i) deliver, or any delay
in delivering, documents or records to it, or (ii) cooperate as required by
this
Agreement or (b) restrictions imposed by any regulatory authority having
jurisdiction over the Replaced Servicer.
The
Master Servicer shall require that any successor to the Servicer as servicer
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 the Servicing
Agreement.
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If
the
Replaced Servicer fails to pay all costs related to the transition of servicing
to the successor Master Servicer or Servicer, the successor Master Servicer
or
Servicer shall be entitled to reimbursement of those amounts from the
Trust.
In
connection with the termination or resignation of the Servicer hereunder or
under the Servicing Agreement, either (i) the successor Servicer, including
the
Master Servicer if it is acting as successor Servicer, shall represent and
warrant that it or its affiliate is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the related Mortgage Loans that are
registered with MERS, or (ii) the Replaced Servicer, at its sole expense, shall
cooperate with the successor Servicer either (x) in causing MERS to execute
and
deliver an Assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect
a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the
MERS®
System
to the successor Servicer or (y) in causing MERS to designate on the
MERS®
System
the successor Servicer as the servicer of such Mortgage Loan (at the cost and
expense of the successor Servicer to the extent such costs relate to the
qualification of such successor Servicer as a member of MERS, otherwise at
the
cost and expense of the Replaced Servicer). The Replaced Servicer shall file
or
cause to be filed any such assignment in the appropriate recording office.
The
successor Servicer shall cause such assignment to be delivered to the Custodian
on behalf of the Trustee, promptly upon receipt of the original with evidence
of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
SECTION
8.03
|
Notification
to Certificateholders.
|
(a) Upon
any
termination or appointment of a successor to the Master Servicer or the
Servicer, the Trust Administrator shall give prompt written notice thereof
to
the Seller and to the Certificateholders at their respective addresses appearing
in the Certificate Register and to the Rating Agencies, or, as applicable,
the
Master Servicer shall give prompt written notice thereof to the Trust
Administrator.
(b) Within
two Business Days after the occurrence of any Event of Default, the Trust
Administrator shall transmit by mail to the Seller, all Certificateholders
and
the Rating Agencies notice of each such Event of Default hereunder known to
the
Trust Administrator, unless such Event of Default shall have been cured or
waived.
SECTION
8.04
|
Waiver
of Events of Default.
|
The
Holders representing at least 66% of the Voting Rights of Certificates affected
by a default or Event of Default hereunder may waive any default or Event of
Default; provided,
however,
that (a)
a default or Event of Default under clause (g) of Section 8.01 may be waived
only by all of the Holders of Certificates affected by such default or Event
of
Default and (b) no waiver pursuant to this Section 8.04 shall affect the Holders
of Certificates in the manner set forth in Section 12.01(b)(i), (ii) or (iii).
Upon any such waiver of a
91
default
or Event of Default by the Holders representing the requisite percentage of
Voting Rights of Certificates affected by such default or Event of Default,
such
default or Event of Default shall cease to exist and shall be deemed to have
been cured and remedied for every purpose hereunder. No such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon except to the extent expressly so waived.
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ARTICLE
IX
CONCERNING
THE TRUSTEE
SECTION
9.01
|
Duties
of Trustee.
|
The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default that may have occurred, undertakes with respect
to the Trust Fund to perform such duties and only such duties as are
specifically set forth in this Agreement. In case an Event of Default of which
a
Responsible Officer of the Trustee shall have actual knowledge 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. Any permissive right of the Trustee
set forth in this Agreement shall not be construed as a duty.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they conform to the
requirements of this Agreement. The Trustee shall have no duty to recompute,
recalculate or verify the accuracy of any resolution, certificate, statement,
opinion, report, document, order or other instrument so furnished to the
Trustee. If any such instrument is found not to conform in any material respect
to the requirements of this Agreement, the Trustee shall notify the
Certificateholders of such instrument in the event that the Trustee, after
so
requesting, does not receive a satisfactorily corrected instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own misconduct, its negligent failure to perform its obligations in compliance
with this Agreement, or any liability which would be imposed by reason of its
willful misfeasance or bad faith; provided,
however,
that:
(a) prior
to
the occurrence of an Event of Default of which a Responsible Officer of the
Trustee shall have actual knowledge, and after the curing or of all such Events
of Default that may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement, the
Trustee shall not be personally liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
and 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 reasonably believed 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 personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless
the Trustee was negligent in ascertaining or investigating the pertinent
facts;
93
(c) the
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with this
Agreement at the direction of the Holders of Certificates evidencing greater
than 50% of the Voting Rights allocated to each Class 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;
(d) no
provision of this Agreement shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it; and
(e) the
Trustee shall have no responsibility for any act or omission of the Trust
Administrator or the Custodian, it being understood and agreed that the Trustee,
the Trust Administrator and the Custodian are independent contractors and not
agents, partners or joint venturers.
The
Trustee shall not be deemed to have knowledge of any Event of Default or event
which, with notice or lapse of time, or both, would become an Event of Default,
unless a Responsible Officer of the Trustee shall have received written notice
thereof from the Master Servicer, the Depositor, or a Certificateholder, or
a
Responsible Officer of the Trustee has actual notice thereof, and in the absence
of such notice no provision hereof requiring the taking of any action or the
assumption of any duties or responsibility by the Trustee following the
occurrence of any Event of Default or event which, with notice or lapse of
time
or both, would become an Event of Default, shall be effective as to the
Trustee.
The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however,
that the
Trustee shall use its best efforts to remit to the Master Servicer or the
Servicer upon receipt of any such complaint, claim, demand, notice or other
document (i) that is delivered to the Corporate Trust Office of the Trustee,
(ii) of that a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee to make a determination
that the real property to which such document relates is a Mortgaged
Property.
SECTION
9.02
|
Certain
Matters Affecting the Trustee.
|
(a) Except
as
otherwise provided in Section 9.01:
(i)
|
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, Servicing Officers 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;
|
94
(ii)
|
the
Trustee may consult with counsel, financial advisors or accountants
and
any advice of such Persons or any Opinion of Counsel shall be full
and
complete authorization and protection in respect of any action taken
or
suffered or omitted by it hereunder in good faith and in accordance
with
such advice or Opinion of Counsel;
|
(iii)
|
the
Trustee shall be under no obligation to exercise any of the trusts
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 Certificateholders shall have offered
to the
Trustee reasonable security or indemnity against the costs, expenses
and
liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon
the
occurrence of an Event of Default of which a Responsible Officer
of the
Trustee shall have actual knowledge (which has not been cured or
waived),
to exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise as
a
prudent person would exercise or use under the circumstances in the
conduct of such person’s own
affairs;
|
(iv)
|
the
Trustee shall not be personally liable for any action taken, suffered
or
omitted by it in good faith and believed by it to be authorized or
within
the discretion or rights or powers conferred upon it by this
Agreement;
|
(v)
|
prior
to the occurrence of an Event of Default hereunder and after the
curing or
waiver of all Events of Default that may have occurred, the Trustee
shall
not be bound to make any investigation into the facts or matters
stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing so to do by Holders of Certificates
evidencing greater than 50% of the Voting Rights allocated to each
Class
of Certificates; provided,
however,
that if the payment within a reasonable time to the Trustee of the
costs,
expenses or liabilities likely to be incurred by it in the making
of such
investigation is, in the opinion of the Trustee, not reasonably assured
to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense
or
liability as a condition to taking any such action; the reasonable
expense
of every such investigation shall be paid (A) by the Master Servicer
or by
the Servicer in the event that such investigation relates to an Event
of
Default by the Master Servicer or by the Servicer, respectively,
if an
Event of Default by the Master Servicer or by the Servicer shall
have
occurred and is continuing, and (B) otherwise by the Certificateholders
requesting the investigation;
|
95
(vi)
|
the
Trustee may execute any of the trusts or powers hereunder or perform
any
duties hereunder either directly or by or through agents or attorneys
and
the Trustee shall not be responsible for any misconduct or negligence
on
the part of any such agent or attorney appointed with due
care;
|
(vii)
|
the
Trustee shall not be required to expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties hereunder
if it shall have reasonable grounds for believing that repayment
of such
funds or adequate indemnity against such liability is not assured
to
it;
|
(viii)
|
the
Trustee shall not be liable for any loss on any investment of funds
pursuant to this Agreement; and
|
(ix)
|
the
right of the Trustee to perform any discretionary act enumerated
in this
Agreement shall not be construed as a duty, and the Trustee shall
not be
answerable for other than its negligence or willful misconduct in
the
performance of such act.
|
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by it without the possession of
any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in its name for the benefit of all the Holders of
such
Certificates, subject to the provisions of this Agreement.
SECTION
9.03
|
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein shall be taken as the statements of the Depositor
or
the Master Servicer or the Servicer, as the case may be, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations
as
to the validity or sufficiency of this Agreement, the Certificates or of any
Mortgage Loan or related document or of MERS or the MERS®
System.
The Trustee shall not be accountable for the use or application by the
Depositor, the Seller, the Master Servicer or the Servicer of any funds paid
to
the Depositor or the Master Servicer or the Servicer in respect of the Mortgage
Loans or deposited in or withdrawn from the Certificate Account by the
Depositor, the Seller or the Master Servicer or the Servicer. The Trustee shall
not be responsible for the legality or validity of this Agreement or the
validity, priority, perfection or sufficiency of the security for the
Certificates issued or intended to be issued hereunder. The Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of
any security interest or lien granted to it hereunder or to record this
Agreement.
SECTION
9.04
|
Trustee
May Own Certificates.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates and may transact business with the other parties hereto and
with
their Affiliates, with the same rights as it would have if it were not the
Trustee.
96
SECTION
9.05
|
Trustee’s
Fees and Expenses.
|
The
Trustee shall be compensated by the Trust Administrator as separately agreed.
The Trustee and any director, officer, employee or agent of the Trustee shall
be
indemnified by the Depositor and held harmless against any loss, liability
or
expense (including reasonable attorney’s fees and expenses) (i) incurred in
connection with any claim or legal action relating to (a) this Agreement, (b)
the Certificates, or (c) the performance of any of the Trustee’s duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misconduct , bad faith or negligence in the performance of any of the
Trustee’s duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from any
error in any tax or information return prepared by the Master Servicer or a
Servicer. Such indemnity shall survive the termination of this Agreement or
the
resignation or removal of the Trustee hereunder. Without limiting the foregoing,
the Depositor covenants and agrees, except as otherwise agreed upon in writing
by the Depositor and the Trustee, and except for any such expense, disbursement
or advance as may arise from the Trustee’s negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee 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 or
appraiser that is not regularly employed by the Trustee, to the extent that
the
Trustee must engage such persons to perform acts or services hereunder and
(C)
printing and engraving expenses in connection with preparing any Definitive
Certificates. Except as otherwise provided herein, 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 hereunder or
for
any other expenses. Anything in this Agreement to the contrary notwithstanding,
in no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such loss
or
damage and regardless of the form of action.
SECTION
9.06
|
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of any state or the United States of America,
authorized under such laws to exercise corporate trust powers, having ratings
on
its long-term debt obligations at the time of such appointment in at least
the
third highest rating category by both Xxxxx’x or S&P or such lower ratings
as will not cause Xxxxx’x or S&P to lower their then-current ratings of the
Class A Certificates, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority. 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 9.06
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 the provisions of this Section 9.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.07 hereof.
97
SECTION
9.07
|
Resignation
and Removal of Trustee.
|
The
Trustee may at any time resign and be discharged from the trusts hereby created
by (a) giving written notice of resignation to the Depositor, the Seller, the
Trust Administrator, the Master Servicer and the Servicer and by mailing notice
of resignation by first class mail, postage prepaid, to the Certificateholders
at their addresses appearing on the Certificate Register, and to the Rating
Agencies, 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 (b) acceptance
by a successor trustee in accordance with Section 9.08 meeting the
qualifications set forth in Section 9.06.
If
at any
time the Trustee 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 Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation or if the Trustee breaches any
of
its obligations or representations hereunder, then the Depositor may remove
the
Trustee and appoint a successor trustee by written instrument, in duplicate,
one
copy of which instrument shall be delivered to the Trustee and one copy to
the
successor trustee. The Trustee may also be removed at any time by the Holders
of
Certificates evidencing not less than 50% of the Voting Rights evidenced by
the
Certificates. Notice of any removal of the Trustee and acceptance of appointment
by the successor trustee shall be given to the Rating Agencies by the
Depositor.
If
no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation or receipt of
a
notice of removal, the resigning Trustee may, at the Trust Fund’s expense,
petition any court of competent jurisdiction for the appointment of a successor
trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 9.07 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
9.08 hereof.
SECTION
9.08
|
Successor
Trustee.
|
Any
successor trustee appointed as provided in Section 9.07 hereof shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee an
instrument accepting such appointment hereunder and thereupon the resignation
or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
Depositor, upon receipt of all amounts due it hereunder, 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 9.08
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 9.06 hereof and its acceptance shall not
adversely affect the then current rating of the Certificates.
98
Upon
acceptance of appointment by a successor trustee as provided in this Section
9.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within ten
days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the
Depositor.
SECTION
9.09
|
Merger
or Consolidation of Trustee.
|
Any
Person into which the Trustee may be merged or converted or with which it may
be
consolidated or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
the business of the Trustee, shall be the successor of the Trustee hereunder,
provided
that
such Person 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
|
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 Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund,
and
to vest in such Person or Persons, in such capacity and for the benefit of
the
applicable Certificateholders, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 9.10, such powers,
duties, obligations, rights and trusts as the Master Servicer and the Trustee
may consider necessary or desirable. If the Master Servicer shall not have
joined in such appointment within fifteen 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 9.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 9.08.
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) all
rights, powers, duties and obligations conferred or imposed upon the Trustee,
except for any obligation of the Trustee under this Agreement to advance funds
on behalf of the Master Servicer or 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 by the Trustee (whether as Trustee
hereunder or as successor to the Master Servicer or the Servicer), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the Trust Fund or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
99
(b) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(c) the
Master Servicer and the Trustee acting jointly may at any time accept the
resignation of or remove any 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 then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
IX.
Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Master Servicer or 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. The Trust Administrator shall not be responsible
for
all action or inaction of any separate trustee or co-trustee. 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
9.11
|
Office
of the Trustee.
|
The
office of the Trustee for purposes of receipt of notices and demands is the
Corporate Trust Office.
100
ARTICLE
X
CONCERNING
THE TRUST ADMINISTRATOR
SECTION
10.01
|
Duties
of Trust Administrator.
|
The
Trust
Administrator, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trust Administrator shall have actual knowledge
and
after the curing or waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default of which a Responsible Officer of the Trust Administrator shall have
actual knowledge has occurred and remains uncured, the Trust Administrator
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. Any permissive right of the Trust Administrator set forth in this
Agreement shall not be construed as a duty.
The
Trust
Administrator, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trust
Administrator that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they conform
to the requirements of this Agreement. The Trust Administrator shall have no
duty to recompute, recalculate or verify the accuracy of any resolution,
certificate, statement, opinion, report, document, order or other instrument
so
furnished to the Trust Administrator. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement, the
Trust
Administrator shall notify the Certificateholders of such instrument in the
event that the Trust Administrator, after so requesting, does not receive a
satisfactorily corrected instrument.
No
provision of this Agreement shall be construed to relieve the Trust
Administrator from liability for its own negligent action, its own negligent
failure to act or its own misconduct, its negligent failure to perform its
obligations in compliance with this Agreement, or any liability which would
be
imposed by reason of its willful misfeasance or bad faith; provided,
however,
that:
(a) prior
to
the occurrence of an Event of Default of which a Responsible Officer of the
Trust Administrator shall have actual knowledge, and after the curing or of
all
such Events of Default that may have occurred, the duties and obligations of
the
Trust Administrator shall be determined solely by the express provisions of
this
Agreement, the Trust Administrator shall not be personally liable except for
the
performance of such duties and obligations as are specifically set forth in
this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trust Administrator and the Trust 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 Trust
Administrator and conforming to the requirements of this Agreement which it
reasonably believed in good faith to be genuine and to have been duly executed
by the proper authorities respecting any matters arising hereunder;
101
(b) the
Trust
Administrator shall not be personally liable for an error of judgment made
in
good faith by a Responsible Officer or Responsible Officers of the Trust
Administrator, unless the Trust Administrator was negligent in ascertaining
or
investigating the pertinent facts;
(c) the
Trust
Administrator shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with this
Agreement or at the direction of the Holders of Certificates evidencing greater
than 50% of the Voting Rights allocated to each Class of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trust Administrator, or exercising any trust or power conferred
upon the Trust Administrator, under this Agreement; and
(d) no
provision of this Agreement shall require the Trust Administrator to expend
or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
The
Trust
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, filing or depositing or to
any
rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance, or (C) to see to the payment or discharge of any tax, assessment
or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Certificate Account.
Except
with respect to an Event of Default described in clause (a) of Section 8.01,
the
Trust Administrator shall not be deemed to have knowledge of any Event of
Default or event which, with notice or lapse of time, or both, would become
an
Event of Default, unless a Responsible Officer of the Trust Administrator shall
have received written notice thereof from the Master Servicer or the Servicer,
the Depositor, or a Certificateholder, or a Responsible Officer of the Trust
Administrator has actual notice thereof, and in the absence of such notice
no
provision hereof requiring the taking of any action or the assumption of any
duties or responsibility by the Trust Administrator following the occurrence
of
any Event of Default or event which, with notice or lapse of time or both,
would
become an Event of Default, shall be effective as to the Trust
Administrator.
The
Trust
Administrator shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however,
that the
Trust Administrator shall use its best efforts to remit to the Master Servicer
or the Servicer upon receipt of any such complaint, claim, demand, notice or
other document (i) which is delivered to the Corporate Trust Office of the
Trust
Administrator, (ii) of which a Responsible Officer has actual knowledge, and
(iii) which contains information sufficient to permit the Trust Administrator
to
make a determination that the real property to which such document relates
is a
Mortgaged Property.
102
SECTION
10.02
|
Certain
Matters Affecting the Trust
Administrator.
|
(a) Except
as
otherwise provided in Section 10.01:
(i)
|
the
Trust Administrator may request and rely upon and shall be protected
in
acting or refraining from acting upon any resolution, Officer’s
Certificate, certificate of auditors, Servicing Officers 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;
|
(ii)
|
the
Trust Administrator may consult with counsel, financial advisors
or
accountants and any advice of such Persons 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
Trust Administrator shall be under no obligation to exercise any
of the
trusts 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 Certificateholders shall
have
offered to the Trust Administrator reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred
therein
or thereby; nothing contained herein shall, however, relieve the
Trust
Administrator of the obligation, upon the occurrence of an Event
of
Default of which a Responsible Officer of the Trust Administrator
shall
have actual knowledge (which has not been cured or waived), to exercise
such of the rights and powers vested in it by this Agreement, and
to use
the same degree of care and skill in their exercise as a prudent
person
would exercise or use under the circumstances in the conduct of such
person’s own affairs;
|
(iv)
|
the
Trust Administrator shall not be personally liable for any action
taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it
by this Agreement;
|
(v)
|
prior
to the occurrence of an Event of Default hereunder and after the
curing or
waiver of all Events of Default that may have occurred, the Trust
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 greater than 50% of the Voting Rights allocated
to
each Class of Certificates; provided,
however,
that if the payment within a reasonable time to the Trust 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 Trust
Administrator, not reasonably assured to the Trust Administrator
by the
security afforded to it by the terms of this Agreement, the Trust
Administrator may require reasonable indemnity against such expense
or
liability as a condition to taking any such action; the reasonable
expense
of every such investigation shall be paid (A) by the Master Servicer
or by
the Servicer in the event that such investigation relates to an Event
of
Default by the Master Servicer or by the Servicer, respectively,
if an
Event of Default by the Master Servicer or the Servicer shall have
occurred and is continuing, and (B) otherwise by the Certificateholders
requesting the investigation;
|
103
(vi)
|
the
Trust Administrator may execute any of the trusts or powers hereunder
or
perform any duties hereunder either directly or by or through agents
or
attorneys and the Trust Administrator shall not be responsible for
any
misconduct or negligence on the part of any such agent or attorney
appointed with due care;
|
(vii)
|
the
Trust Administrator shall not be required to expend its own funds
or
otherwise incur any financial liability in the performance of any
of its
duties hereunder if it shall have reasonable grounds for believing
that
repayment of such funds or adequate indemnity against such liability
is
not assured to it;
|
(viii)
|
the
Trust Administrator shall not be liable for any loss on any investment
of
funds pursuant to this Agreement;
|
(ix)
|
the
right of the Trust Administrator to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and
the
Trust Administrator shall not be answerable for other than its negligence
or willful misconduct in the performance of such act;
and
|
(x)
|
The
Trust Administrator shall not be required to give any bond or surety
in
respect of the execution of the Trust Fund created hereby or the
powers
granted hereunder.
|
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trust Administrator, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trust Administrator shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions
of
this Agreement.
SECTION
10.03
|
Trust
Administrator Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein shall be taken as the statements of the Depositor
or
the Master Servicer or the Servicer, as the case may be, and the Trust
Administrator assumes no responsibility for their correctness. The Trust
Administrator makes no representations as to the validity or sufficiency of
this
Agreement, the Certificates or of any Mortgage Loan or related document. The
Trust Administrator shall not be accountable for the use or application by
the
Depositor, any Seller, the Master Servicer or the Servicer of any funds paid
to
the Depositor or the Master Servicer or the Servicer in respect of the Mortgage
Loans or deposited in or withdrawn from the Certificate Account by the
Depositor, the Seller or the Master Servicer or the Servicer. The Trust
Administrator shall not be responsible for the legality or validity of this
Agreement or the validity, priority, perfection or sufficiency of the security
for the Certificates issued or intended to be issued hereunder. The Trust
Administrator shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection for any security interest or lien granted to it
hereunder or to record this Agreement.
104
SECTION
10.04
|
Trust
Administrator May Own
Certificates.
|
The
Trust
Administrator 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
Trust Administrator.
SECTION
10.05
|
Trust
Administrator’s Fees and
Expenses.
|
As
compensation for its services hereunder, the Trust Administrator shall be
entitled to withdraw from the Certificate Account the investment income or
other
benefit derived from balances in the Certificate Account pursuant to Section
3.04(b). The Trust Administrator and any director, officer, employee or agent
of
the Trust Administrator shall be indemnified by DLJMC (or if DLJMC shall fail
to
do so, by the Trust) and held harmless against any loss, liability or expense
(including reasonable attorney’s fees and expenses) (i) incurred in connection
with any claim or legal action relating to (a) this Agreement, (b) the
Certificates, (c) the Custodial Agreement, or (d) the performance of any of
the Trust Administrator’s duties hereunder or under the Custodial Agreement,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of any of the Trust
Administrator’s duties hereunder or incurred by reason of any action of the
Trust Administrator taken at the direction of the Certificateholders and (ii)
resulting from any error in any tax or information return prepared by the Master
Servicer or a Servicer; provided
however,
that
the sum of (x) such indemnity amounts payable by DLJMC or the Trust to the
Trust
Administrator pursuant to this Section 10.05 and (y) the indemnity amounts
payable by DLJMC or the Trust to the Master Servicer pursuant to Section
3.14(c), shall not exceed $200,000 per year;
provided, further,
that
any amounts not payable by DLJMC or the Trust to the Trust Administrator due
to
the preceding proviso shall be payable by DLJMC (or if DLJMC fails to do so,
by
the Trust) in any succeeding year, subject to the aggregate $200,000 per annum
limitation imposed by the preceding proviso. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trust
Administrator hereunder. Without limiting the foregoing, DLJMC (or if DLJMC
fails to do so, the Trust) shall, except as otherwise agreed upon in writing
by
DLJMC and the Trust Administrator, and except for any such expense, disbursement
or advance as may arise from the Trust Administrator’s negligence, bad faith or
willful misconduct, pay or reimburse the Trust Administrator (up to a maximum
of
$150,000), for all reasonable expenses, disbursements and advances incurred
or
made by the Trust 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 or appraiser that is not regularly employed by the
Trust Administrator, to the extent that the Trust Administrator must engage
such
persons to perform acts or services hereunder and (C) printing and engraving
expenses in connection with preparing any Definitive Certificates. In addition,
DLJMC (or if DLJMC fails to do so, the Trust) shall pay or reimburse the Trust
Administrator for recertification fees required to be paid by the Trust
Administrator pursuant to a Custodial Agreement. Except as otherwise provided
herein, the Trust Administrator shall not be entitled to payment or
reimbursement for any routine ongoing expenses incurred by the Trust
Administrator in the ordinary course of its duties as Trust Administrator,
Registrar, Tax Matters Person or Paying Agent hereunder. Anything in this
Agreement to the contrary notwithstanding, in no event shall the Trust
Administrator be liable for special, indirect or consequential loss or damage
of
any kind whatsoever (including but not limited to lost profits), even if the
Trust Administrator has been advised of the likelihood of such loss or damage
and regardless of the form of action.
105
SECTION
10.06
|
Eligibility
Requirements for Trust
Administrator.
|
The
Trust
Administrator hereunder shall at all times be (a) an institution the deposits
of
which are fully insured by the FDIC and (b) a corporation or banking association
organized and doing business under the laws of any state or the United States
of
America, authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authority and (c) with respect to every
successor Trust Administrator hereunder an institution the long-term unsecured
debt obligations of which are rated at least “A/F1” or better by Fitch Ratings
and BBB or better by S&P unless the failure of the Trust Administrator’s
long-term unsecured debt obligations to have such ratings would not result
in
the lowering of the ratings originally assigned to any Class of Certificates.
In
addition, if Fitch is a Rating Agency, the Trust Administrator hereunder at
all
times (i) may not be a Master Servicer, a Servicer, the Depositor or an
affiliate of the Depositor unless the Trust Administrator is in an institutional
trust department of the Trust Administrator and (ii) must be rated at least
“A/F1” on its long term debt obligations by Fitch or such other rating
acceptable to Fitch pursuant to a rating confirmation. If such corporation
or
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 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 Trust Administrator shall cease to be
eligible in accordance with the provisions of this Section 10.06, the Trust
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof.
SECTION
10.07
|
Resignation
and Removal of Trust
Administrator.
|
The
Trust
Administrator may at any time resign and be discharged from the trusts hereby
created by (a) giving written notice of resignation to the Depositor, the
Seller, the Trustee, the Master Servicer and the Servicer and by mailing notice
of resignation by first class mail, postage prepaid, to the Certificateholders
at their addresses appearing on the Certificate Register, and to the Rating
Agencies, not less than 60 days before the date specified in such notice when,
subject to Section 10.08, such resignation is to take effect, and (b) acceptance
by a successor trust administrator in accordance with Section 10.08 meeting
the
qualifications set forth in Section 10.06.
106
If
at any
time the Trust Administrator shall cease to be eligible in accordance with
the
provisions of Section 10.06 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trust Administrator
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trust Administrator or of its property shall be appointed,
or any public officer shall take charge or control of the Trust Administrator
or
of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation or if the Trust Administrator breaches any of its obligations or
representations hereunder, then the Depositor may remove the Trust Administrator
and appoint a successor trust administrator by written instrument, in duplicate,
one copy of which instrument shall be delivered to the Trust Administrator
and
one copy to the successor trust administrator. The Trust Administrator may
also
be removed at any time by the Trustee or the Holders of Certificates evidencing
not less than 50% of the Voting Rights evidenced by the Certificates. Notice
of
any removal of the Trust Administrator and acceptance of appointment by the
successor trust administrator shall be given to the Rating Agencies by the
Depositor.
If
no
successor trust administrator shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation or
receipt of a notice of removal, the resigning Trust Administrator may, at the
Trust Fund’s expense, petition any court of competent jurisdiction for the
appointment of a successor trust administrator.
Notwithstanding
the foregoing, if the Master Servicer shall for any reason no longer be Master
Servicer hereunder, at DLJMC’s request, the Trust Administrator shall resign,
upon the selection and appointment of a successor trust administrator meeting
the qualifications set forth in Section 10.06.
Any
resignation or removal of the Trust Administrator and appointment of a successor
trust administrator pursuant to any of the provisions of this Section 10.07
shall become effective upon acceptance of appointment by the successor trust
administrator as provided in Section 10.08 hereof.
SECTION
10.08
|
Successor
Trust Administrator.
|
Any
successor trust administrator appointed as provided in Section 10.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trust administrator an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trust administrator
shall become effective and such successor trust 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 the like
effect as if originally named as trust administrator herein. The Depositor,
upon
receipt of all amounts due it hereunder, and the predecessor trust 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 trust administrator all such rights, powers, duties, and
obligations.
107
No
successor trust administrator shall accept appointment as provided in this
Section 10.08 unless at the time of such acceptance such successor trust
administrator shall be eligible under the provisions of Section 10.06 hereof
and
its acceptance shall not adversely affect the then current rating of the
Certificates.
Upon
acceptance of appointment by a successor trust administrator as provided in
this
Section 10.08, the Depositor shall mail notice of the succession of such trust
administrator hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register. If the Depositor fails to mail such notice
within ten days after acceptance of appointment by the successor trust
administrator, the successor trust administrator shall cause such notice to
be
mailed at the expense of the Depositor.
SECTION
10.09
|
Merger
or Consolidation of Trust
Administrator.
|
Any
Person into which the Trust Administrator may be merged or converted or with
which it may be consolidated or any Person resulting from any merger, conversion
or consolidation to which the Trust Administrator shall be a party, or any
Person succeeding to the business of the Trust Administrator, shall be the
successor of the Trust Administrator hereunder, provided
that
such Person shall be eligible under the provisions of Section 10.06 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
10.10
|
Appointment
of Co-Trust Administrator or Separate Trust
Administrator.
|
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 Master
Servicer and the Trust Administrator acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trust Administrator to act as co-trust administrator or co-trust
administrators jointly with the Trust Administrator, or separate trust
administrator or separate trust administrators, 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 applicable Certificateholders, such title to the Trust Fund,
or
any part thereof, and, subject to the other provisions of this Section 10.10,
such powers, duties, obligations, rights and trusts as the Master Servicer
and
the Trust Administrator may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within fifteen 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 Trust Administrator alone shall have the
power to make such appointment. No co-trust administrator or separate trust
administrator hereunder shall be required to meet the terms of eligibility
as a
successor trust administrator under Section 10.06 and no notice to
Certificateholders of the appointment of any co-trust administrator or separate
trust administrator shall be required under Section 10.08.
Every
separate trust administrator and co-trust administrator shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and
conditions:
108
(a) all
rights, powers, duties and obligations conferred or imposed upon the Trust
Administrator, except for any obligation of the Trust Administrator under this
Agreement to advance funds on behalf of the Master Servicer or the Servicer,
shall be conferred or imposed upon and exercised or performed by the Trust
Administrator and such separate trust administrator or co-trust administrator
jointly (it being understood that such separate trust administrator or co-trust
administrator is not authorized to act separately without the Trust
Administrator 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 by
the
Trust Administrator (whether as Trust Administrator hereunder or as successor
to
the Master Servicer or the Servicer), the Trust Administrator shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trust administrator or co-trust
administrator, but solely at the direction of the Trust
Administrator;
(b) no
trust
administrator hereunder shall be held personally liable by reason of any act
or
omission of any other trust administrator hereunder; and
(c) the
Master Servicer and the Trust Administrator acting jointly may at any time
accept the resignation of or remove any separate trust administrator or co-trust
administrator.
Any
notice, request or other writing given to the Trust Administrator shall be
deemed to have been given to each of the then separate trust administrators
and
co-trust administrators, as effectively as if given to each of them. Every
instrument appointing any separate trust administrator or co-trust administrator
shall refer to this Agreement and the conditions of this Article X. Each
separate trust administrator and co-trust administrator, 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 Trust Administrator
or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating
to
the conduct of, affecting the liability of, or affording protection to, the
Trust Administrator. Every such instrument shall be filed with the Trust
Administrator and a copy thereof given to the Master Servicer or the Servicer
and the Depositor.
Any
separate trust administrator or co-trust administrator may, at any time,
constitute the Trust Administrator, 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. The Trust
Administrator shall not be responsible for any action or inaction of any
separate Trust Administrator or Co-Trust Administrator. If any separate trust
administrator or co-trust administrator 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 Trust Administrator, to the extent
permitted by law, without the appointment of a new or successor trust
administrator.
SECTION
10.11
|
Office
of the Trust Administrator.
|
The
office of the Trust Administrator for purposes of receipt of notices and demands
is the Corporate Trust Office.
109
SECTION
10.12
|
Tax
Return.
|
The
Master Servicer and the Servicer, upon request, shall furnish the Trust
Administrator with all such information related to the Mortgage Loans in the
possession of the Master Servicer or the Servicer as may be reasonably required
in connection with the preparation by the Trust Administrator of all tax and
information returns of the Trust Fund, and the Trust Administrator shall sign
such returns. The Master Servicer and the Servicer, severally and not jointly,
shall indemnify the Trust Administrator for all reasonable costs, including
legal fees and expenses, related to errors in such tax returns due to errors
only in such information provided by the Master Servicer or by the
Servicer.
SECTION
10.13
|
[Reserved].
|
SECTION
10.14
|
Determination
of Certificate Index.
|
On
each
Interest Determination Date, the Trust Administrator shall determine the
Certificate Index for the Accrual Period and make it available to the Master
Servicer, and such rate shall be final and binding, absent a manifest error
of
the Trust Administrator.
110
ARTICLE
XI
TERMINATION
SECTION
11.01
|
Termination
upon Liquidation or Purchase of all Mortgage
Loans.
|
The
obligations and responsibilities of the Master Servicer, the Servicer, the
Seller, the Depositor, the Trustee and the Trust Administrator created hereby
with respect to the Trust Fund created hereby shall terminate upon the earlier
of:
(a)
(i) the
purchase by the Servicer, at its election, of all Mortgage Loans and all
property acquired in respect of any remaining Mortgage Loan, which purchase
right the Servicer may exercise at its sole and exclusive election as of any
Distribution Date (such applicable Distribution Date being herein referred
to as
the “Optional
Termination Date”)
on or
after the date on which the aggregate Principal Balance of the Mortgage Loans
at
the time of the purchase is less than 10% of the aggregate Principal Balance
of
the Mortgage Loans as of the Cut-off Date; or
(b) the
later
of (i) twelve months after the maturity of the last Mortgage Loan remaining
in
the Trust Fund, (ii) the 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 (iii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement; or
(c) the
purchase by the Auction Purchaser of all Mortgage Loans in and all property
acquired in respect of any remaining Mortgage Loan in any Loan Group (the
“Trust
Collateral”)
as
described below.
In
no
event shall the trust created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
of
Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the United States to Great Britain,
living on the date of execution of this Agreement or (ii) the Distribution
Date
following the third anniversary of the scheduled maturity date of the Mortgage
Loan having the latest scheduled maturity date as of the Cut-off
Date.
The
“Mortgage
Loan Purchase Price”
for
any
such Optional Termination shall be equal to the greater of (a) the sum of (i)
100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property) plus accrued and unpaid interest thereon from the
date
to which such interest was paid or advanced at the sum of the applicable
Mortgage Rate, to but not including the Due Date in the month of the final
Distribution Date (or the Net Mortgage Rate with respect to any related Mortgage
Loan currently serviced by the entity exercising such Optional Termination)
and
(ii) with respect to any REO Property, 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 Depositor at the expense of the Depositor
and (y) the Stated Principal Balance of each related Mortgage Loan related
to
any REO Property, in each case and (iii) any remaining unreimbursed Advances
and
Servicing Advances and unpaid Servicing Fees, other than any remaining
unreimbursed Advances and Servicing Advances and unpaid Servicing Fees, if
any,
due to the Servicer, and other amounts payable to the Trustee and Trust
Administrator (the sum of (i), (ii) and (iii), collectively, the “Par
Value”)
and
(b) the Fair Market Value of all of the property of the Trust related to the
Mortgage Loans subject to an Optional Termination. The “Fair
Market Value”
shall
be the fair market value of all of the property of the Trust related to the
Mortgage Loans subject to an Optional Termination, as agreed upon between the
Servicer and a majority of the holders of the Class AR Certificates;
provided,
however,
that if
the Servicer and a majority of the holders of the Class AR Certificates do
not
agree upon the fair market value of all of such property of the Trust, the
Servicer, or an agent appointed by the Servicer, shall solicit bids for all
of
such property of the Trust until it has received three bids, and the Fair Market
Value shall be equal to the highest of such three bids. The Trust Administrator
shall give notice to the Rating Agencies of election to purchase the Mortgage
Loans pursuant to this Section 11.01 and of the Optional Termination
Date.
111
On
any
Distribution Date on or after the date on which the aggregate Principal Balance
of the Mortgage Loans at the time of the purchase is less than 5% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date (the
“Auction
Date”),
the
Trust Administrator shall solicit bids for the all of the related Trust
Collateral from at least three institutions that are regular purchasers and/or
sellers in the secondary market of residential whole mortgage loans similar
to
the Mortgage Loans. If the Trust Administrator receives at least three bids
for
all of the related Trust Collateral, and one of such bids is equal to or greater
than the Par Value, the Trust Administrator shall sell all of the related Trust
Collateral to the highest bidder (the “Auction
Purchaser”)
at the
price offered by the Auction Purchaser (the “Mortgage
Loan Auction Price”).
If
the Trust Administrator receives less than three bids, or does not receive
any
bid that is equal to or greater than the Par Value, the Trust Administrator
shall, on each six-month anniversary of the initial Auction Date, repeat these
auction procedures until the Trust Administrator receives a bid that is equal
to
or greater than the Par Value, and sells all of the related Trust Collateral
to
the Auction Purchaser at the Mortgage Loan Purchase Price; provided,
however,
that
the Trust Administrator shall not be required to repeat these auction procedures
on any Distribution Date for any six-month anniversary of the initial Auction
Date unless the Trust Administrator reasonably believes that there is a
reasonable likelihood of receiving a bid in excess of the Par Value. The Trust
Administrator shall give notice to the Rating Agencies and the Servicer that
of
the sale of all of the related Trust Collateral pursuant to this Section 11.01
(an “Auction
Sale”)
and of
the Auction Date. Notwithstanding anything to the contrary herein, the Auction
Purchaser shall not be the Depositor or DLJMC or any of their respective
affiliates.
SECTION
11.02
|
[Reserved]
|
SECTION
11.03
|
Procedure
Upon Optional Termination or Auction
Sale.
|
(a) In
case
of any Optional Termination the Servicer shall, no later than 10 days prior
to
the first day of the Optional Termination Notice Period notify the Trustee
and
Trust Administrator of such Optional Termination Date and of the applicable
purchase price of the Mortgage Loans to be purchased. Upon the purchase by
the
Servicer of any Mortgage Loans pursuant to Section 11.01, the Trust
Administrator shall notify the Servicer of such purchase.
(b) Any
purchase of the Mortgage Loans by the Servicer shall be made on an Optional
Termination Date by deposit of the applicable purchase price into the
Certificate Account, as applicable, before the Distribution Date on which such
purchase is effected. Upon receipt by the Trust Administrator of an Officer’s
Certificate of the Servicer certifying as to the deposit of such purchase price
into the Certificate Account, the Trustee and the Trust Administrator and each
co-trust administrator and separate trust administrator, if any, then acting
as
such under this Agreement, shall, upon request and at the expense of the
Servicer execute and deliver all such instruments of transfer or assignment,
in
each case without recourse, as shall be reasonably requested by the Servicer
to
vest title in the Servicer in the Mortgage Loans so purchased and shall transfer
or deliver to the Servicer the purchased Mortgage Loans. Any distributions
on
the Mortgage Loans which have been subject to an Optional Termination received
by the Trust Administrator subsequent to (or with respect to any period
subsequent to) the Optional Termination Date shall be promptly remitted by
it to
the Servicer.
112
(c) Any
purchase of the Trust Collateral by the related Auction Purchaser shall be
made
on an Auction Date by receipt of the Trust Administrator of the related Mortgage
Loan Auction Price from the Auction Purchaser, and deposit of the such Mortgage
Loan Auction Price into the Certificate Account by the Trust Administrator
before the Distribution Date on which such purchase is effected. Upon deposit
of
such purchase price into the Certificate Account, the Trustee and the Trust
Administrator and each co-trust administrator and separate trust administrator,
if any, then acting as such under this Agreement, shall, upon request and at
the
expense of the Auction Purchaser execute and deliver all such instruments of
transfer or assignment, in each case without recourse, as shall be reasonably
requested by the Auction Purchaser to vest title in the Auction Purchaser in
the
Trust Collateral so purchased and shall transfer or deliver to the Auction
Purchaser the purchased Trust Collateral.
(d) Notice
of
the Distribution Date on which the Trust Administrator anticipates that the
final distribution shall be made on a Class of Certificates (whether upon
Optional Termination, Auction Sale or otherwise), shall be given promptly by
the
Trust Administrator by first class mail to Holders of the affected Certificates.
Such notice shall be mailed no earlier than the 15th day and not later than
the
10th day preceding the applicable Optional Termination Date, Auction Date or
date of final distribution, as the case may be. Such notice shall specify (i)
the Distribution Date upon which final distribution on the affected Certificates
will be made upon presentation and surrender of such Certificates at the office
or agency therein designated, (ii) the amount of such final distribution and
(iii) that the Record Date otherwise applicable to such Distribution Date is
not
applicable, such distribution being made only upon presentation and surrender
of
such Certificates at the office or agency maintained for such purposes (the
address of which shall be set forth in such notice).
(e) In
the
event that any Certificateholders shall not surrender Certificates for
cancellation within six months after the date specified in the above mentioned
written notice, the Trust Administrator shall give a second written notice
to
the remaining such Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trust 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
subject to the Trust Fund.
113
SECTION
11.04
|
Additional
Termination Requirements.
|
(a) In
the
event the Servicer exercises an Optional Termination pursuant to Section
11.01(A) or an Auction Sale pursuant to Section 11.01(C), the REMIC holding
the
related Mortgage Loans shall be liquidated in accordance with the following
additional requirements, unless the Trustee and the Trust Administrator have
received an Opinion of Counsel to the effect that the failure to comply with
the
requirements of this Section will not (i) result in the imposition of taxes
on a
“prohibited transaction” of any REMIC, as described in Section 860F of the Code,
or (ii) cause any REMIC formed hereby to fail to qualify as a REMIC at any
time
that any Certificates are outstanding:
(i)
|
within
90 days prior to the final Distribution Date set forth in the notice
given
by the Trust Administrator under Section 11.03, the Holder of the
Class AR
Certificates shall adopt a plan of complete liquidation of the Subsidiary
REMIC; and
|
(ii)
|
at
or after the time of adoption of any such plan of complete liquidation
for
such Subsidiary REMIC and at or prior to the final Distribution Date,
the
Trustee shall sell all of the assets of such Subsidiary REMIC to
the
Servicer for cash; provided,
however,
that in the event that a calendar quarter ends after the time of
adoption
of such a plan of complete liquidation but prior to the final Distribution
Date, the Trustee shall not sell any of the assets of such REMIC
prior to
the close of that calendar quarter.
|
(b) Upon
the
exercise of an Optional Termination by the Servicer or upon the occurrence
of an
Auction Sale, in each case, pursuant to paragraph (a) of this Section if no
other Subsidiary REMIC shall remain outstanding following such termination,
the
Master REMIC shall be terminated in accordance with the following additional
requirements, unless the Trustee and the Trust Administrator have received
an
Opinion of Counsel to the effect that the failure to comply with the
requirements of this Section will not (i) result in the imposition of taxes
on a
“prohibited transaction” of any REMIC formed hereby, as described in Section
860F of the Code, or (ii) cause any REMIC formed hereby to fail to qualify
as a
REMIC at any time that any Certificates are outstanding:
concurrently
with the adoption of the plan of complete liquidation of the Subsidiary REMIC,
as set forth in paragraph (a) of this Section, the Holder of the Class AR
Certificates shall adopt a plan of complete liquidation of the Master REMIC;
and
at
or
after the time of adoption of any such plan of complete liquidation for the
Master REMIC and at or prior to the final Distribution Date of the Subsidiary
REMIC, the Trustee shall sell all of the assets of the Master REMIC to the
Depositor for cash; provided,
however,
that in
the event that a calendar quarter ends after the time of adoption of such a
plan
of complete liquidation but prior to the final Distribution Date, the Trustee
shall not sell any of the assets of the Master REMIC prior to the close of
that
calendar quarter.
114
(c) By
its
acceptance of a Residual Certificate, the Holder thereof hereby agrees to adopt
such a plan of complete liquidation and to take such other action in connection
therewith as may be reasonably required to liquidate and otherwise terminate
the
Master REMIC and the Subsidiary REMIC.
115
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01
|
Amendment.
|
(a) This
Agreement may be amended from time to time by the Depositor, the Master
Servicer, the Servicer, the Seller, the Trust Administrator and the Trustee,
without the consent of any of the Certificateholders,
(i)
|
to
cure any error or ambiguity,
|
(ii)
|
to
correct or supplement any provisions herein that may be inconsistent
with
any other provisions herein or in the Prospectus
Supplement,
|
(iii)
|
to
modify, eliminate or add to any of its provisions to such extent
as shall
be necessary or desirable to maintain the qualification of any REMIC
formed hereby as a REMIC at all times that any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on
the Trust
Fund pursuant to the Code that would be a claim against the Trust
Fund,
provided
that the Trustee has received an Opinion of Counsel to the effect
that (A)
such action is necessary or desirable to maintain such qualification
or to
avoid or minimize the risk of the imposition of any such tax and
(B) such
action will not adversely affect the status of any REMIC formed hereby
as
a REMIC or adversely affect in any material respect the interests
of any
Certificateholder,
|
(iv)
|
in
connection with the appointment of a successor servicer, to modify,
eliminate or add to any of the servicing provisions, provided
the Rating Agencies confirm the rating of the Certificates;
|
(v)
|
to
make any other provisions with respect to matters or questions arising
under this Agreement that are not materially inconsistent with the
provisions of this Agreement, provided
that such action shall not adversely affect in any material respect
the
interests of any Certificateholder or cause an Adverse REMIC Event.
Any
amendment pursuant to this Section 12.01(a)(v) shall not be deemed
to
adversely affect in any material respect the interests of any
Certificateholders if a letter is obtained from each Rating Agency
stating
that such amendment would not result in the downgrading or withdrawal
of
the respective ratings then assigned to the Certificates;
or
|
(vi)
|
to
comply with the provisions of Regulation
AB.
|
116
(b) This
Agreement may be amended from time to time by the Depositor, the Master
Servicer, the Servicer, the Seller, the Trust Administrator and the Trustee
with
the consent of the Holders of Certificates evidencing, in the aggregate, not
less than 66-2/3% of the Voting Rights of all the Certificates 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 the Certificates; provided,
however,
that no
such amendment may (i) reduce in any manner the amount of, delay the timing
of
or change the manner in which payments received on or with respect to Mortgage
Loans are required to be distributed with respect to any Certificate without
the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of a Class of Certificates in a manner
other than as set forth in (i) above without the consent of the Holders of
Certificates evidencing not less than 66-2/3% of the Voting Rights of such
Class, (iii) reduce the aforesaid percentages of Voting Rights, the holders
of
which are required to consent to any such amendment without the consent of
100%
of the Holders of Certificates of the Class affected thereby, (iv) change the
percentage of the Stated Principal Balance of the Mortgage Loans specified
in
Section 11.01(a) relating to optional termination of the Trust Fund, (v) change
the percentage of the Stated Principal Balance of the Mortgage Loans specified
in the last two paragraphs of Section 11.01 relating to an Auction Sale or
(vi)
modify the provisions of this Section 12.01.
It
shall
not be necessary for the consent of Certificateholders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trust Administrator may prescribe.
(c) Promptly
after the execution of any amendment to this Agreement, the Trust Administrator
shall furnish written notification of the substance of such amendment to each
Certificateholder, and the Rating Agencies.
(d) Prior
to
the execution of any amendment to this Agreement, each of the Trustee and the
Trust Administrator shall receive and be entitled to conclusively rely on an
Opinion of Counsel (at the expense of the Person seeking such amendment) stating
that the execution of such amendment is authorized and permitted by this
Agreement. The Trustee and the Trust Administrator may, but shall not be
obligated to, enter into any such amendment which affects the Trustee’s or the
Trust Administrator’s own rights, duties or immunities under this
Agreement.
(e) The
Master Servicer and the Trust Administrator may consent to any amendment of
a
Designated Servicing Agreement to make any other provisions with respect to
matters or questions arising under such Designated Servicing Agreement or this
Agreement that are not materially inconsistent with the provisions of such
Designated Servicing Agreement and this Agreement, provided
that
such action shall not adversely affect in any material respect the interests
of
any Certificateholder or cause an Adverse REMIC Event. Any amendment pursuant
to
this Section 12.01(e) shall not be deemed to adversely affect in any material
respect the interests of any Certificateholders if a letter is obtained from
each Rating Agency stating that such amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates.
117
(f) Neither
the Master Servicer nor the Trust Administrator shall consent to any amendment
of a Designated Servicing Agreement which shall adversely affect in any material
respect the interests of the Holders of a Class of Certificates without the
consent of the Holders of Certificates evidencing not less than 66-2/3% of
the
Voting Rights of such Class.
It
shall
not be necessary for the consent of Certificateholders under this Section to
approve the particular form of any proposed amendment of a Designated Servicing
Agreement, 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 Trust Administrator may prescribe.
Promptly
after the execution of any amendment to a Designated Servicing Agreement
pursuant to this Section 12.01(e) or (f), the Trust Administrator shall furnish,
upon written notice of such amendment, written notification of the substance
of
such amendment to each Certificateholder, and the Rating Agencies.
Notwithstanding
anything to the contrary in this Section 12.01, the Master Servicer, the
Servicer, the Seller, the Trust Administrator and the Trustee shall reasonably
cooperate with the Depositor and its counsel to enter into such amendments
or
modifications to the Agreement as may be necessary to comply with Regulation
AB
and any interpretation thereof by the Commission.
SECTION
12.02
|
Recordation
of Agreement; Counterparts.
|
(a) This
Agreement (other than Schedule I) is subject to recordation in all
appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere.
Such recordation, if any, shall be effected by the Depositor at its expense,
but
only upon direction by the Trustee (acting at the direction of the holders
of
Certificates evidencing a majority of the aggregate Class Principal Balance)
accompanied by an Opinion of Counsel (at the Depositor’s expense) to the effect
that such non-recordation materially and adversely affects the interests of
the
Certificateholders.
(b) 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
12.03
|
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, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS
(OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
118
SECTION
12.04
|
Intention
of Parties.
|
(a) It
is the
express intent of the Depositor, the Seller, the Master Servicer, the Servicer,
the Trust Administrator and the Trustee that (i) the conveyance by DLJMC of
the
Mortgage Loans to the Depositor pursuant to the Assignment and Assumption
Agreement and (v) the conveyance by the Depositor to the Trustee as provided
for
in Section 2.01 of each of the Seller’s and Depositor’s right, title and
interest in and to the Mortgage Loans be, and be construed as, an absolute
sale
and assignment by DLJMC to the Depositor and by the Depositor to the Trustee
of
the Mortgage Loans for the benefit of the Certificateholders. Further, it is
not
intended that any conveyance be deemed to be a pledge of the Mortgage Loans
by
DLJMC to the Depositor or by the Depositor to the Trustee to secure a debt
or
other obligation. However, in the event that the Mortgage Loans are held to
be
property of DLJMC or the Depositor, as applicable, or if for any reason the
Assignment and Assumption Agreement or this Agreement is held or deemed to
create a security interest in the Mortgage Loans, then it is intended that
(i)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (ii) the
conveyances provided for in Section 2.01 shall be deemed to be a grant by each
of the Seller and the Depositor to the Trustee on behalf of the
Certificateholders, to secure payment in full of the Secured Obligations (as
defined below), of a security interest in all of each Seller’s and the
Depositor’s right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to the Mortgage Loans,
including the Mortgage Notes, the Mortgages, any related insurance policies
and
all other documents in the related Mortgage Files, and all accounts, contract
rights, general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices
of
credit and uncertificated securities consisting of, arising from or relating
to
(A) the Mortgage Loans, including with respect to each Mortgage Loan, the
Mortgage Note and related Mortgage, and all other documents in the related
Trustee Mortgage Files, and including any Qualified Substitute Mortgage Loans;
(B) pool insurance policies, hazard insurance policies and any bankruptcy bond
relating to the foregoing, if applicable; (C) the Certificate Account; (D)
the
Custodial Account; (E) all amounts payable after the Cut-off Date to the holders
of the Mortgage Loans in accordance with the terms thereof; (F) all income,
payments, proceeds and products of the conversion, voluntary or involuntary,
of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Certificate Account, whether in the form of cash, instruments, securities or
other property; and (G) all cash and non-cash proceeds of any of the foregoing;
(iii) the possession by the Trustee or any other agent of the Trustee of
Mortgage Notes or such other items of property as constitute instruments, money,
documents, advices of credit, letters of credit, goods, certificated securities
or chattel paper shall be deemed to be a “possession by the secured party”, or
possession by a purchaser or a person designated by him or her, for purposes
of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-313, 8-313 or 8-321 thereof); and
(iv) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, securities intermediaries, bailees or agents (as applicable)
of
the Trustee for the purpose of perfecting such security interest under
applicable law. “Secured
Obligations”
means
(i) the rights of each Certificateholder to be paid any amount owed to it under
this Agreement and (ii) all other obligations of the Seller and the Depositor
under this Agreement and the Assignment and Assumption Agreement.
119
(b) The
Seller and the Depositor, and, at the Depositor’s direction, the Master Servicer
or the Servicer, the Trustee and the Trust Administrator, shall, to the extent
consistent with this Agreement, take such reasonable actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest
in
the Mortgage Loans and the other property described above, such security
interest would be deemed to be a perfected security interest of first priority
as applicable. The Depositor shall prepare and file, at the Servicer’s expense,
all filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction
to
perfect the Trustee’s security interest in or lien on the Mortgage Loans,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or the Servicer or the Depositor in any Mortgage Loan.
SECTION
12.05
|
Notices.
|
In
addition to other notices provided under this Agreement, the Trust Administrator
shall notify the Rating Agencies in writing: (a) of any substitution of any
Mortgage Loan; (b) of any payment or draw on any insurance policy applicable
to
the Mortgage Loans; (c) of the final payment of any amounts owing to a Class
of
Certificates; (d) any Event of Default under this Agreement; and (e) in the
event any Mortgage Loan is purchased in accordance with this
Agreement.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when received (i) in the case of the Depositor,
Credit Suisse First Boston Mortgage Securities Corp., 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx; Facsimile: 000-000-0000
(with a copy to Credit Suisse First Boston Mortgage Securities Corp., 00 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx;
Facsimile: 917-326-7926) and for purposes of Article XIV,
xxxxx.xxxxxxxxx@xxxxxx-xxxxxx.xxx; (ii) in the case of the Trustee, the
Corporate Trust Office, or such other address as may hereafter be furnished
to
the Depositor in writing by the Trustee; (iii) in the case of Xxxxx Fargo,
as
Master Servicer and Trust Administrator, Corporate Trust Office, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: TBW 2006-4 or such other address
as may be hereafter furnished to the Depositor and the Trustee by Xxxxx Fargo
in
writing and (iv) in the case of DLJMC, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx; Facsimile: 000-000-0000 (with a
copy
to DLJMC, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxx; Facsimile: 212-743-5261), or such other address as may be hereafter
furnished to the Depositor and the Trustee by DLJMC in writing, (v) in the
case
of Standard and Poor’s Ratings Services, a division of The McGraw Hill
Companies, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Xxxxx Xxxxx; (vi)
in
the case of the Trust Administrator, the Corporate Trust Office, and (vii)
in
the case of the Servicer, Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., 000 XX
0xx
Xxxxxx,
Xxxxx, Xxxxxxx 00000 (with a copy to Xxxxxxx X. Xxxxxxxx, Esq., General Counsel,
0000 Xxxxx Xxxxxxx Xxxx, Xx. 000, Xxxxxxxx, Xxxxxxx 30152). Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid.
120
SECTION
12.06
|
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
12.07
|
Limitation
on Rights of
Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder’s legal
representative or heirs to claim an accounting or to take any action or commence
any proceeding in any court for a petition or winding up of the Trust Fund,
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 Trust Administrator a written notice
of an Event of Default and of the continuance thereof, as provided herein,
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 upon
the Trust Administrator to institute such action, suit or proceeding in its
own
name as Trust Administrator hereunder and shall have offered to the Trust
Administrator such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trust
Administrator, 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 Trust
Administrator, 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 12.07, each and every Certificateholder and the
Trust
Administrator shall be entitled to such relief as can be given either at law
or
in equity.
121
SECTION
12.08
|
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, 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
Trust Administrator pursuant to this Agreement, are and shall be deemed fully
paid.
SECTION
12.09
|
Protection
of Assets.
|
Except
for transactions and activities entered into in connection with the
securitization that is the subject of this agreement, the trust created by
this
agreement is not authorized and has no power to:
(a) borrow
money or issue debt;
(b) merge
with another entity, reorganize, liquidate or sell assets; or
(c) engage
in
any business or activities.
Each
party to this agreement agrees that it will not file an involuntary bankruptcy
petition against the Trust Fund or initiate any other form of insolvency
proceeding until after the Certificates have been paid.
SECTION
12.10
|
Non-Solicitation.
|
From
and
after the date of this Agreement, each of the Depositor, the Seller, the Master
Servicer, the Servicer, the Trust Administrator and the Trustee agrees that
it
will not take any action or permit or cause any action to be taken by any of
its
agents or affiliates, or by any independent contractors on any such party's
behalf, to personally, by telephone, by mail, or electronically by e-mail or
through the internet or otherwise, solicit the borrower or obligor under any
Mortgage Loan to refinance the Mortgage Loan, in whole or in part.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by the Depositor, the Seller, the Master Servicer, the Servicer,
the
Trust Administrator or the Trustee or any affiliate of any such party that
originates mortgage loans in the normal course, which are directed to the
general public at large, or segments thereof, including without limitation
mass
mailings based on commercially acquired mailing lists or newspaper, radio and
television advertisements shall not constitute solicitation under this Section
12.10, provided,
that no
segment of the general public shall consist primarily of the borrowers or
obligors under the Mortgage Loans; nor shall efforts undertaken by the Servicer
to direct borrowers who are determined to be in the course of refinancing a
Mortgage Loan to conduct such refinance with the Servicer’s affiliated
originator be deemed to constitute impermissible solicitation under this Section
12.10, provided
that
such efforts are not intended to cause the refinancing of a Mortgage Loan that
otherwise would not have been refinanced or have the effect of increasing the
rate at which the Mortgage Loans are prepaid. None of the Depositor, a Seller,
the Master Servicer, the Servicer, the Trust Administrator or the Trustee shall
permit the sale of the name of any Mortgagor or any list of names that consist
primarily of the Mortgages to any Person.
122
123
ARTICLE
XIII
[Reserved]
ARTICLE
XIV
EXCHANGE
ACT REPORTING
SECTION
14.01
|
Commission
Reporting.
|
The
Trust
Administrator, the Servicer and the Master Servicer shall reasonably cooperate
with the Depositor in connection with the Trust’s satisfying the reporting
requirements under the Exchange Act. The Trust Administrator shall prepare
on
behalf of the Depositor any Forms 8-K, 10-D and 10-K customary for similar
securities as required by the Exchange Act and the rules and regulations of
the
Commission thereunder, and the Depositor shall sign and the Trust Administrator
shall file (via XXXXX) such Forms on behalf of the Depositor.
Each
of
Form 10-D and Form 10-K requires the registrant to indicate (by checking “yes”
or “no”) that it “(1) has filed all reports required to be filed by Section 13
or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been
subject to such filing requirements for the past 90 days.” The Depositor hereby
represents to the Securities Administrator that the Depositor has filed all
such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify the
Securities Administration in writing, no later than the fifth calendar day
after
the related Distribution Date with respect to the filing of a report on Form
10-D and no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report.
SECTION
14.02
|
Form
10-D Reporting
|
Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Trust Administrator shall prepare and file on behalf of
the
Trust Fund any Form 10-D required by the Exchange Act, in form and substance
as
required by the Exchange Act. The Trust 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 determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Trust Administrator shall 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
R
hereto,
within five (5) calendar days after the related Distribution Date, (i) the
parties set forth thereon shall be required to provide to the Trust
Administrator and the Depositor, to the extent known by a responsible party
thereof, in XXXXX-compatible form, or in such other form as otherwise agreed
upon by the Trust Administrator and such party, the form and substance of any
Additional Form 10-D Disclosure, if applicable together with an additional
disclosure notification in the form of Exhibit
V
hereto
(an “Additional
Disclosure Notification”)
and
(ii) the Depositor will approve, as to form and substance, or disapprove, as
the
case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D.
The Depositor shall be responsible for any reasonable fees and expenses assessed
or incurred by the Trust Administrator in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
124
After
preparing the Form 10-D, the Trust Administrator shall forward electronically
a
copy of the Form 10-D to the Depositor for review. Within two (2) Business
Days
after receipt of such copy, but no later than the 12th
calendar
day after the Distribution Date, the Depositor shall notify the Trust
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. No later than the 13th
calendar
day after the related Distribution Date, 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 Trust Administrator.
If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs
to be
amended, the Trust Administrator shall follow the procedures set forth in
Section 14.05. Promptly (but no later than one (1) Business Day) after filing
with the Commission, the Trust Administrator shall make available on its
internet website a final executed copy of each Form 10-D prepared and filed
by
the Trust Administrator. Each party to this Agreement acknowledges that the
performance by the Master Servicer and the Trust Administrator of its duties
under this Section 14.02 related to the timely preparation and filing of Form
10-D is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 14.02. Neither the Trust
Administrator nor the Master Servicer shall have any liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, timely execute and/or timely file such Form 10-D, where such failure
results from the Trust Administrator’s inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 10-D, not resulting from
its
own negligence, bad faith or willful misconduct.
SECTION
14.03
|
Form
10-K Reporting
|
On
or
prior to the 90th
day
after the end of each fiscal year of the Trust or such earlier date as may
be
required by the Exchange Act (the “10-K
Filing Deadline”)
(it
being understood that the fiscal year for the Trust ends on December
31st
of each
year), commencing in March 2007, the Trust 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 Trust Administrator within
the applicable time frames set forth in this Agreement, the related Custodial
Agreements and the related Designated Servicing Agreement, (i) the Item 1123
Certification for the Servicer, each Additional Servicer, the Master Servicer
and Trust Administrator as described under Section 14.06, (ii)(A) the Assessment
of Compliance with servicing criteria for the Servicer, each Additional
Servicer, the Master Servicer, Trust Administrator and any Servicing Function
Participant engaged by such parties (each, a “Reporting
Servicer”),
and
(B) if any Reporting Servicer’s Assessment of Compliance identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Reporting Servicer’s Assessment of Compliance is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (iii)(A) the
Accountant’s Attestation for each Reporting Servicer, as described under Section
14.08, and (B) if any Accountant’s Attestation identifies any material instance
of noncompliance, disclosure identifying such instance of noncompliance, or
if
any such Accountant’s Attestation 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 Xxxxxxxx-Xxxxx Certification as described
in
Section 14.09. 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 determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Trust 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.
125
As
set
forth on Exhibit
W
hereto,
no later than March 15 of each year that the Trust is subject to the Exchange
Act reporting requirements, commencing in 2007, (i) the parties set forth on
Exhibit
W
shall be
required to provide to the Trust Administrator and the Depositor, to the extent
known by a responsible officer, a notice in the form of Exhibit
V
hereto,
along with, in XXXXX-compatible form, or in such other form as otherwise agreed
upon by the Trust Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor shall 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 shall be responsible for any
reasonable fees and expenses assessed or incurred by the Trust Administrator
in
connection with including any Additional Form 10-K Disclosure on Form 10-K
pursuant to this paragraph.
After
preparing the Form 10-K, the Trust Administrator shall forward electronically
a
copy of the Form 10-K to the Depositor for review. Within three (3) business
days of receipt, but in no event later than March 25, the Depositor shall notify
the Trust Administrator in writing (which may be furnished electronically)
of
any changes to or approval of such Form 10-K. No later than the close of
business on the 4th Business Day prior to the 10-K Filing Deadline, 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 Trust Administrator. If a Form 10-K cannot be filed on time or
if a
previously filed Form 10-K needs to be amended, the Trust Administrator shall
follow the procedures set forth in Section 14.05. Promptly (but no later than
1
Business Day) after filing with the Commission, the Trust Administrator shall
make available on its internet website a final executed copy of each Form 10-K
prepared and filed by the Trust Administrator. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Trust
Administrator of its duties under this Section 14.03 related to the timely
preparation and filing of Form 10-K is contingent upon such parties (and the
Custodian, Servicer and any Additional Servicer or Servicing Function
Participant) strictly observing all applicable deadlines in the performance
of
their duties under Article XIV. Neither the Trust Administrator nor the Master
Servicer shall have any 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 Trust Administrator’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto needed to prepare, arrange for execution or file
such Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
126
SECTION
14.04
|
Form
8-K Reporting
|
Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”),
and
if requested by the Depositor, the Trust 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 determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Trust 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
T
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 (i) the parties set forth on Exhibit
T
shall be
required to provide to the Trust Administrator and the Depositor, to the extent
known by a responsible officer thereof, a notice in the form of Exhibit
V
attached
hereto, along with, in XXXXX-compatible form, or in such other form as otherwise
agreed upon by the Trust Administrator and such party, the form and substance
of
any Form 8-K Disclosure Information, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor shall approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Form 8-K
Disclosure Information. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Trust Administrator in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
paragraph.
After
preparing the Form 8-K, the Trust Administrator shall forward electronically
a
copy of the Form 8-K to the Depositor for review. No later than the
3rd
Business
Days after the Reportable Event, the Depositor shall notify the Trust
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 8-K. No later than noon New York City time on the
4th Business Day after the Reportable Event, 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 Trust
Administrator. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K needs to be amended, the Trust Administrator shall follow the
procedures set forth in Section 14.05. Promptly (but no later than 1 Business
Day) after filing with the Commission, the Trust Administrator shall make
available on its internet website a final executed copy of each Form 8-K
prepared and filed by the Trust Administrator. The parties to this Agreement
acknowledge that the performance by the Trust Administrator and the Master
Servicer of its duties under this Section 14.04 related to the timely
preparation and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 14.04. Neither the Master Servicer not the Trust Administrator shall
have any liability for any loss, expense, damage or 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 Trust Administrator’s inability or failure
to obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
127
SECTION
14.05
|
Delisting;
Amendment; Late Filing of
Reports
|
On
or
before January 30 of the first year in which the Trust Administrator is able
to
do so under applicable law, the Trust Administrator shall prepare and file
a
Form 15 Suspension Notification relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act.
In
the
event that the Trust Administrator is unable to timely file with the Commission
all or any required portion of any Form 8-K, 10-D or 10-K required to be filed
by this Agreement because required disclosure information was either not
delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement or for any other reason, the Trust Administrator shall promptly,
but no later than within one business day, notify electronically the Depositor.
In the case of Form 10-D and 10-K, the parties to this Agreement shall cooperate
to prepare and file a Form 12b-25 and a 10-DA or 10-KA, as applicable, pursuant
to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Trust
Administrator shall, upon receipt of all required Form 8-K Disclosure
Information and upon the approval and direction of the Depositor, include such
disclosure information on the next Form 10-D. In the event that any previously
filed Form 8-K, 10-D or 10-K needs to be amended to include additional
disclosure, the Trust Administrator shall electronically notify the Depositor
and the affected parties and such parties shall cooperate to prepare any
necessary Form 8-KA, 10-DA or 10-KA. Any Form 15, Form 12b-25 or any amendment
to Form 8-K, 10-D or 10-K shall be signed by the Depositor. The parties to
this
Agreement acknowledge that the performance by the Trust Administrator and the
Master Servicer of its duties under this Section 14.05 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 each such party performing its duties under
this
Section. Neither the Trust Administrator nor the Master Servicer shall have
any
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 Form 15, Form 12b-25
or any amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the Trust Administrator’s inability or failure to obtain or receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 15, Form 12b-25 or any amendments to Forms
8-K,
10-D or 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
SECTION
14.06
|
Annual
Statements of Compliance
|
The
Master Servicer, the Trust Administrator and the Servicer shall deliver or
otherwise make available (and the Master Servicer, the Trust Administrator
and
the Servicer shall cause any Additional Servicer engaged by it to deliver or
otherwise make available) to the Depositor, the Trustee and the Trust
Administrator on or before March 15 of each year, commencing in March 2007,
an
Officer’s Certificate (an “Item
1123 Certificate”)
stating, as to the signer thereof, that (A) a review of such party’s activities
during the preceding calendar year or portion thereof and of such party’s
performance under this Agreement, or such other applicable agreement in the
case
of an Additional Servicer, has been made under such officer’s supervision and
(B) to the best of such officer’s knowledge, based on such review, such party
has fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Promptly after
receipt of each such Item 1123 Certificate, the Depositor shall review such
Item
1123 Certificate and, if applicable, consult with each such party, as
applicable, as to the nature of any failures by such party, in the fulfillment
of any of such party’s obligations hereunder or, in the case of an Additional
Servicer, under such other applicable agreement.
128
The
Master Servicer shall enforce any obligation of the Servicer, to the extent
set
forth in the related Designated Servicing Agreement, to deliver to the Master
Servicer an Item 1123 Certificate as may be required pursuant to the related
Designated Servicing Agreement. The Master Servicer shall include such Item
1123
Certificate with its own Item 1123 Certificate to be submitted to the Trust
Administrator, the Depositor and the Trustee pursuant to this
Section.
SECTION
14.07
|
Annual
Assessments of Compliance
|
By
March
15 of each year, commencing in March 2007, the Master Servicer, the Trust
Administrator and the Servicer, each at its own expense, shall furnish or
otherwise make available, and each such party shall cause any Servicing Function
Participant engaged by it to furnish or otherwise make available, each at its
own expense, to the Trust Administrator, the Trustee and the Depositor, a report
on an assessment of compliance with the Relevant Servicing Criteria (an
“Assessment
of Compliance”)
that
contains (A) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
party
used the Relevant Servicing Criteria to assess compliance with the Relevant
Servicing Criteria, (C) such party’s assessment of compliance with the Relevant
Servicing Criteria as of and for the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 14.03, including, if there has been
any
material instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an Accountant’s
Attestation on such party’s Assessment of Compliance with the Relevant Servicing
Criteria as of and for such period.
No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Servicer and the Master Servicer shall each forward to the Trust
Administrator the name of each Servicing Function Participant engaged by it
and
what Relevant Servicing Criteria will be addressed in the Assessment of
Compliance prepared by such Servicing Function Participant (provided,
however,
that
the Master Servicer need not provide such information to the Trust Administrator
so long as the Master Servicer and the Trust Administrator are the same person).
When the Master Servicer and the Servicer (or any Servicing Function Participant
engaged by them) submit their Assessments of Compliance to the Trust
Administrator, such parties shall also at such time include the Assessments
of
Compliance (and Accountant’s Attestation) of each Servicing Function Participant
engaged by it.
Promptly
after receipt of each Assessment of Compliance, (i) the Depositor shall review
each such report and, if applicable, consult with the Master Servicer, the
Trust
Administrator, the Servicer, the Custodian and any Servicing Function
Participant engaged by such parties as to the nature of any material instance
of
noncompliance with the Relevant Servicing Criteria by each such party, and
(ii)
the Trust Administrator shall confirm that the Assessments of Compliance, taken
individually, address the Relevant Servicing Criteria for each party as set
forth on Exhibit
Q
and on
any similar exhibit set forth in each Designated Servicing Agreement in respect
of the Servicer and notify the Depositor of any exceptions. None of such parties
shall be required to deliver any such assessments until March 30 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.
129
The
Master Servicer shall enforce any obligation of the Servicer and the Custodian,
to the extent set forth in the related Designated Servicing Agreement or
Custodial Agreement, as applicable, to deliver to the Master Servicer an
Assessment of Compliance within the time frame set forth in, and in such form
and substance as may be required pursuant to, the related Designated Servicing
Agreement or Custodial Agreement, as applicable. The Master Servicer shall
include such Assessment of Compliance with its own Assessment of Compliance
to
be submitted to the Trust Administrator and the Trustee pursuant to this
Section.
SECTION
14.08
|
Accountant’s
Attestation
|
By
March
15 of each year, commencing in 2007, the Master Servicer, the Trust
Administrator and the Servicer, each at its own expense, shall cause, and each
such party shall cause any Servicing Function Participant engaged by it to
cause, each at its own expense, a registered public accounting firm (which
may
also render other services to the Master Servicer, the Trust Administrator
or
the Servicer or such other Servicing Function Participants, as the case may
be)
and that is a member of the American Institute of Certified Public Accountants
to furnish a report (the “Accountant’s
Attestation”)
to the
Trust Administrator and the Depositor, to the effect that (i) it has obtained
a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (ii) on the basis of an examination conducted by such
firm in accordance with standards for attestation engagements issued or adopted
by the PCAOB, it is expressing an opinion as to whether such party’s compliance
with the Relevant Servicing Criteria was fairly stated in all material respects,
or it cannot express an overall opinion regarding such party’s assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must
be
available for general use and not contain restricted use language.
Promptly
after receipt of such Accountant’s Attestations from the Master Servicer, the
Servicer, the Custodian, the Trust Administrator or any Servicing Function
Participant engaged by such parties, (i) the Depositor shall review the report
and, if applicable, consult with such parties as to the nature of any defaults
by such parties, in the fulfillment of any of each such party’s obligations
hereunder or under any other applicable agreement, and (ii) the Trust
Administrator shall confirm that each Assessment of Compliance is coupled with
an Accountant’s Attestation meeting the requirements of this Section and notify
the Depositor of any exceptions. None of such parties shall be required to
deliver any such assessments until March 30 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.
130
The
Master Servicer shall enforce any obligation of the Servicer and the Custodian,
to the extent set forth in the related Designated Servicing Agreement and the
related Custodial Agreement, as applicable, to deliver to the Master Servicer
an
attestation as may be required pursuant to, the related Designated Servicing
Agreement or Custodial Agreement as applicable. The Master Servicer shall
include each such attestation with its own Accountant’s Attestation to be
submitted to the Trust Administrator pursuant to this Section.
SECTION
14.09
|
Xxxxxxxx-Xxxxx
Certification
|
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx
Certification”),
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The
Servicer, the Master Servicer and the Trust Administrator shall provide, and
the
Servicer, the Master Servicer and the Trust Administrator shall cause any
Servicing Function Participant engaged by it to, provide to the Person who
signs
the Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”),
by
March 15 of each year in which the Trust is subject to the reporting
requirements of the Exchange Act and otherwise within a reasonable period of
time upon request, a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit
U,
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The Depositor shall serve as the Certifying Person on behalf
of
the Trust. In the event the Master Servicer, the Trust Administrator, the
Trustee or any Servicing Function Participant engaged by parties is terminated
or resigns pursuant to the terms of this Agreement, or any applicable
sub-servicing agreement, as the case may be, such party shall provide a Back-Up
Certification to the Certifying Person pursuant to this Section 14.09 with
respect to the period of time it was subject to this Agreement or any applicable
sub-servicing agreement, as the case may be.
The
Master Servicer shall enforce any obligation of the Servicer, to the extent
set
forth in the related Designated Servicing Agreement, to deliver to the Master
Servicer a certification similar to the Back-Up Certification as may be required
pursuant to the related Designated Servicing Agreement.
SECTION
14.10
|
Indemnification
|
Each
of
the Depositor, the Master Servicer, the Trust Administrator, the Servicer and
any Servicing Function Particpant engaged by any such party (each, a
“Responsible
Party”)
shall
indemnify and hold harmless the Trust Administrator, the Master Servicer and
the
Depositor and each of their directors, officers, employees, agents, and
affiliates from and against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments and
other
costs and expenses arising out of or based upon (a) any breach by such
Responsible Party of any if its obligations under this Article XIV including
particularly its obligation to provide any Back-Up Certification, any
131
Assessment
of Compliance and an Accountant’s Attestation and/or an Item 1123 Certification
required under this Article XIV, (b) any misstatement or omission in any
information, data or materials provided by such Responsible Party, or (c) the
negligence, bad faith or willful misconduct of such Responsible Party in
connection with the performance of any if its obligations under this Article
XIV. If the indemnification provided for herein is unavailable or insufficient
to hold harmless the Master Servicer, the Trust Administrator or the Depositor,
then each Responsible Party agrees that it shall contribute to the amount paid
or payable by Trust Administrator, the Master Servicer or the Depositor, as
applicable, as a result of any claims, losses, damages or liabilities incurred
by the Master Servicer, the Trust Administrator or the Depositor, as applicable,
in such proportion as is appropriate to reflect the relative fault of Trust
Administrator or the Depositor, as applicable, on the one hand and such
Responsible Party, on the other. This indemnification shall survive the
termination of this Agreement or the termination of any party to this
Agreement.
132
IN
WITNESS WHEREOF, the Depositor, the Seller, the Master Servicer, the Servicer,
the Trustee and the Trust Administrator have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the
1st
day of
August 2006.
CREDIT
SUISSE FIRST BOSTON MORTGAGE
SECURITIES
CORP., as Depositor
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
DLJ
MORTGAGE CAPITAL, INC., as a Seller
By:
/s/
Xxx Xxx
Name:
Xxx
Xxx
Title:
Vice President
XXXXX
FARGO BANK, N.A., as Master Servicer and Trust Administrator
By:
/s/
Xxx Xxxxx
Name:
Xxx
Xxxxx
Title:
Vice President
133
XXXXXX,
BEAN & XXXXXXXX MORTGAGE CORP., as Servicer
By:
/s/
Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
CEO
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:
/s/
Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Vice President
000
XXXXX
XX
XXX XXXX )
:
ss.:
COUNTY
OF
NEW YORK )
On
this
28th day of August 2006, before me, personally appeared Xxxxx Xxxxxx, known
to
me to be a Vice President of Credit Suisse First Boston Mortgage Securities
Corp., one of the corporations that executed the within instrument, and also
known to me to be the person who executed it on behalf of said corporation,
and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxxxx X. Xxxxxxxx
Notary
Public
[NOTARIAL
SEAL]
000
XXXXX
XX
XXX XXXX )
:
ss.:
COUNTY
OF
NEW YORK )
On
the
28th day of August 2006 before me, personally appeared Xxx Xxx, known to me
to
be a Vice President of DLJ Mortgage Capital, Inc., one of the corporations
that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxxxx X. Xxxxxxxx
Notary
Public
[NOTARIAL
SEAL]
000
XXXXX
XX
XXXXXXXX
)
: ss.:
COUNTY
OF
XXXX ARUNDEL )
On
the
28th of August 2006 before me, a Notary Public in and for said State, personally
appeared Xxx Xxxxx known to me to be a Vice President of Xxxxx Fargo Bank,
N.A.,
a national banking association that executed the within instrument and also
known to me to be the person who executed it on behalf of said national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxxx X. Xxxxxxxx
Notary
Public
[NOTARIAL
SEAL]
000
XXXXX
XX
XXXXXXX )
:
ss.:
COUNTY
OF
XXXXXX )
On
this
25th day of August 2006, before me, personally appeared Xxxx X. Xxxxx, known
to
me to be a CEO of Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., one of the
corporations that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxxxxx X. Xxxxxx-Xxxxxx
Notary
Public
[NOTARIAL
SEAL]
000
XXXXX
XX
XXXXXXXXX )
:
ss.:
COUNTY
OF
XXXXXX )
On
the
28th of August 2006 before me, a Notary Public in and for said State, personally
appeared Xxxxxxx X. Xxxxxxxx known to me to be a Vice President of U.S. Bank
National Association, a National Banking Association that executed the within
instrument and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxxxx X. Xxxxxxx
Notary
Public
[NOTARIAL
SEAL]
139
EXHIBIT
A
[FORM
OF CLASS A CERTIFICATE]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO 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 IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
A-1
Certificate
No.
|
:
|
|
Cut-off
Date
|
:
|
August
1, 2006
|
First
Distribution Date
|
:
|
September
25, 2006
|
Initial
Certificate Balance
|
||
of
this Certificate
|
||
(“Denomination”)
|
:
|
|
Initial
Certificate Balances
of
all Certificates
of
this Class
|
:
|
|
CUSIP
|
:
|
|
Pass-Through
Rate
|
:
|
|
Maturity
Date
|
:
|
September
25, 2036
|
A-2
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit
Suisse First Boston Mortgage Securities Corp.,
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of fixed rate conventional mortgage loans (the “Mortgage Loans”) secured by
first liens on one- to four-family residential properties.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
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
Seller, the Master Servicer, the Servicer, the Trust Administrator or the
Trustee 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
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”) among
the Depositor, DLJ Mortgage Capital, Inc., as seller (in such capacity, the
“Seller”), Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., as servicer (in such
capacity, the “Servicer”), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the “Master Servicer”) and as trust administrator (in such capacity,
the “Trust Administrator”), and U.S. Bank National Association, 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 countersigned by an authorized signatory of
the
Trust Administrator.
A-3
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August ___, 2006.
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
By_______________________________________
Countersigned:
By
___________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
A-4
EXHIBIT
B
[FORM
OF CLASS B CERTIFICATE]
[ONLY
FOR
OFFERED CERTIFICATES] [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 IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[ONLY
FOR
PRIVATE CERTIFICATES] [THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (“THE ACT”). ANY RESALE OR TRANSFER OF THIS
CERTIFICATE WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN
A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.]
B-1
PURSUANT
TO SECTION 6.02(f) OF THE AGREEMENT, AN ERISA RESTRICTED CERTIFICATE OR ANY
INTEREST HEREIN MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE
TRUSTEE (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT SECTION
406
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR
SECTION 4975 OF THE CODE OR A PERSON USING THE ASSETS OF SUCH A PLAN OR OTHER
RETIREMENT ARRANGEMENT OR (II) IF THE PURCHASER IS AN INSURANCE COMPANY AND
THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO
HEREIN OR (III) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF
THE AGREEMENT REFERRED TO HEREIN. IN THE EVENT THE REPRESENTATIONS REFERRED
TO
IN THE PRECEDING SENTENCE ARE NOT FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED
TO HAVE BEEN MADE TO THE TRUSTEE BY THE TRANSFEREE’S ACCEPTANCE OF THIS
CERTIFICATE, OR BY ANY BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS
CERTIFICATE IN BOOK-ENTRY FORM. IN THE EVENT THAT A REPRESENTATION IS VIOLATED,
OR ANY ATTEMPT TO TRANSFER THIS CERTIFICATE TO A PLAN OR OTHER RETIREMENT
ARRANGEMENT OR PERSON USING A PLAN’S OR ARRANGEMENT’S ASSETS IS ATTEMPTED
WITHOUT THE DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL DESCRIBED ABOVE,
THE ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE SHALL BE VOID AND
OF
NO EFFECT.
B-2
Certificate
No.
|
:
|
|
Cut-off
Date
|
:
|
August
1, 2006
|
First
Distribution Date
|
:
|
September
25, 2006
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
|
Initial
Certificate Balances
of
all Certificates
of
this Class
|
:
|
|
CUSIP
|
:
|
|
Interest
Rate
|
:
|
|
Maturity
Date
|
:
|
September
25, 2036
|
B-3
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit
Suisse First Boston Mortgage Securities Corp.,
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4
Class
[______]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of fixed rate conventional mortgage loans (the “Mortgage Loans”) secured by
first liens on one- to four-family residential properties.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
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
Seller, the Master Servicer, the Servicer, the Trust Administrator or the
Trustee 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
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”) among
the Depositor, DLJ Mortgage Capital, Inc., as seller (in such capacity, the
“Seller”), Xxxxxx, Xxxx & Xxxxxxxx Mortgage Corp., as servicer (in such
capacity, the “Servicer”), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the “Master Servicer”) and as trust administrator (in such capacity,
the “Trust Administrator”), and U.S. Bank National Association, 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.
B-4
Pursuant
to Section 6.02(f) of the Agreement, no transfer of an ERISA Restricted
Certificate shall be made unless the Trustee shall have received either
(i) a representation letter from the transferee of such ERISA Restricted
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
or
other retirement arrangement subject to Section 406 of ERISA or Section 4975
of
the Code, or a person using the assets of any such plan or other retirement
arrangement which representation letter shall not be an expense of the Trustee
or the Trust Fund, (ii) if the purchaser is an insurance company and the
ERISA Restricted Certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation that the purchaser is an insurance company which
is purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such ERISA Restricted Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or Section
4975 of the Code (or comparable provisions of any subsequent enactments), or
a
person using such plan’s or arrangement’s assets, an Opinion of Counsel
satisfactory to the Trustee to the effect that the purchase or holding of such
Certificate will not result in prohibited transactions under Section 406 of
ERISA and/or Section 4975 of the Code and will not subject the Depositor, the
Trustee, the Trust Administrator, the Servicer, the Master Servicer or any
other
servicers to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the such parties or the
Trust Fund. In the event the representations referred to in the preceding
sentence are not furnished, such representation shall be deemed to have been
made to the trustee by the transferee’s acceptance of an ERISA Restricted
Certificate or by any beneficial owner who purchases an interest in this
certificate in book-entry form. In the event that a representation is violated,
or any attempt to transfer an ERISA Restricted Certificate to a plan or other
retirement arrangement or person using a plan’s or arrangement’s assets is
attempted without the delivery to the Trustee of the Opinion of Counsel
described above, the attempted transfer or acquisition of this certificate
shall
be void and of no effect.
[ONLY
FOR
PRIVATE CERTIFICATES] [No transfer of this 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 laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder’s prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer and (i) deliver
a
letter in substantially the form of either Exhibit M and either
(A) Exhibit N-1, provided
that all
of the Certificates of the Class shall be transferred to one investor or the
Depositor otherwise consents to such transfer, or (B) Exhibit N-2 or
(ii) there shall be delivered to the Trust Administrator at the expense of
the
transferor an Opinion of Counsel that such transfer may be made pursuant to
an
exemption from the Securities Act. In the event that such a transfer is to
be
made within three years from the date of the initial issuance of Certificates
pursuant hereto, there shall also be delivered (except in the case of a transfer
pursuant to Rule 144A of the Securities Act) to the Trustee and the Trust
Administrator an Opinion of Counsel that such transfer may be made pursuant
to
an exemption from the Securities Act. The Holder hereof desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Trustee, the Trust
Administrator 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.]
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.
B-5
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trust Administrator.
B-6
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2006
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
By
________________________________________
Countersigned:
By
___________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
B-7
EXHIBIT
C
[FORM
OF CLASS AR CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL 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”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUST 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 UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”) OR ARRANGEMENT, OR SECTION 4975 OF THE CODE OR
A PERSON USING THE ASSETS OF SUCH A PLAN OR OTHER RETIREMENT ARRANGEMENT, OR
(B)
IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION THAT THE TRANSFEREE
IS AN INSURANCE COMPANY WHICH IS PURCHASING THIS CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT,” AS THAT TERM IS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR PTCE 95-60,
AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS
I
AND III OF PTCE 95-60, OR (C) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE
TO
THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO ERISA
OR
TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
C-1
Certificate
No.
|
:
|
|
Cut-off
Date
|
:
|
August
1, 2006
|
First
Distribution Date
|
:
|
September
25, 2006
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
$100.00
|
Initial
Certificate Balances
|
||
of
all Certificates
|
||
of
this Class
|
:
|
$100.00
|
CUSIP
|
:
|
|
Pass-Through
Rate
|
:
|
|
Maturity
Date
|
:
|
C-2
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit
Suisse First Boston Mortgage Securities Corp.,
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Class AR
Certificates with respect to a Trust Fund consisting primarily of a pool of
fixed rate conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
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
Seller, the Master Servicer, the Servicer, the Trust Administrator or the
Trustee 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 WACHOVIA BANK, N.A., 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
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”) among
the Depositor, DLJ Mortgage Capital, Inc., as seller (in such capacity, the
“Seller”), Xxxxxx, Xxxx & Xxxxxxxx Mortgage Corp., as servicer (in such
capacity, the “Servicer”), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the “Master Servicer”) and as trust administrator (in such capacity,
the “Trust Administrator”), and U.S. Bank National Association, 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 AR Certificate at the
Corporate Trust Office or the office or agency maintained by the Trust
Administrator in Minneapolis, Minnesota.
C-3
No
transfer of a Class AR Certificate shall be made unless the Trustee shall have
received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
or
other retirement arrangement subject to Section 406 of ERISA or Section 4975
of
the Code, or a person using the assets of any such plan or other retirement
arrangement, which representation letter shall not be an expense of the Trustee
or the Trust Fund or (ii) if the transferee is an insurance company, a
representation that the transferee is an insurance company which is purchasing
this certificate with funds contained in an “insurance company general account,”
as that term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60, or PTCE 95-60, and that the purchase and holding of this
certificate are covered under Sections I and III of PTCE 95-60, or (iii) in
the case of any such Class AR Certificate presented for registration in the
name
of an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or other retirement arrangement or any person acting using such plan’s or
arrangement’s assets, an Opinion of Counsel satisfactory to the Trustee to the
effect that the purchase or holding of such Class AR Certificate will not result
in prohibited transactions under Section 406 of ERISA and/or Section 4975 of
the
Code and will not subject the Depositor, the Trustee, the Trust Administrator,
the Servicer, the Master Servicer or any other servicers to any obligation
in
addition to those undertaken in this Agreement, which Opinion of Counsel shall
not be an expense of such parties or the Trust Fund. Notwithstanding anything
else to the contrary herein, any purported transfer of a Class AR Certificate
to
or on behalf of an employee benefit plan or other retirement arrangement subject
to ERISA or to the Code without the Opinion of Counsel satisfactory to the
Trustee as described above shall be void and of no effect.
Each
Holder of this Class AR Certificate will be deemed to have agreed to be bound
by
the restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this Class
AR Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this Class AR Certificate may be transferred without delivery to the Trust
Administrator of a transfer affidavit of the initial owner or the proposed
transferee in the form described in the Agreement, (iii) each person holding
or
acquiring any Ownership Interest in this Class AR Certificate must agree to
require a transfer affidavit from any other person to whom such person attempts
to Transfer its Ownership Interest in this Class AR Certificate as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class AR Certificate must agree not to transfer an Ownership
Interest in this Class AR Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class AR Certificate in
violation of such restrictions will be absolutely null and void and will 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 countersigned by an authorized signatory of
the
Trust Administrator.
C-4
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2006
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
By
_________________________________________
Countersigned:
By
___________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
C-5
EXHIBIT
D
[FORM
OF CLASS X CERTIFICATES]
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 IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTIONS
IN
RESPECT OF PRINCIPAL.
D-1
Certificate
No.
|
:
|
|
Cut-off
Date
|
:
|
August
1, 2006
|
First
Distribution Date
|
:
|
September
25, 2006
|
Initial
Notional Amount
of
this Certificate
(“Denomination”)
|
:
|
|
Initial
Class Notional Amount of
all
Certificates of this Class
|
:
|
|
CUSIP
|
:
|
|
Pass-Through
Rate
|
:
|
|
Maturity
Date
|
:
|
D-2
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit
Suisse First Boston Mortgage Securities Corp.,
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of fixed rate conventional mortgage loans (the “Mortgage Loans”) secured by
first liens on one- to four-family residential properties.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee 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
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”) among
the Depositor, DLJ Mortgage Capital, Inc., as seller (in such capacity, the
“Seller”), Xxxxxx, Xxxx & Xxxxxxxx Mortgage Corp., as servicer (in such
capacity, the “Servicer”), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the “Master Servicer”) and as trust administrator (in such capacity,
the “Trust Administrator”), and U.S. Bank National Association, 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 countersigned by an authorized signatory of
the
Trust Administrator.
D-3
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2006.
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
By______________________________________
Countersigned:
By
___________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
D-4
EXHIBIT
E
[FORM
OF CLASS P 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 IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS NOT ENTITLED TO ANY PAYMENTS OF INTEREST.
E-1
Certificate
No.
|
:
|
|
Cut-off
Date
|
:
|
August
1, 2006
|
First
Distribution Date
|
:
|
September
25, 2006
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
|
Initial
Certificate Balances
|
||
of
all Certificates
|
||
of
this Class
|
:
|
|
Percentage
Interest
|
:
|
|
CUSIP
|
:
|
|
Pass-Through
Rate
|
:
|
|
Maturity
Date
|
:
|
E-2
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit
Suisse First Boston Mortgage Securities Corp.,
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of fixed rate conventional mortgage loans (the “Mortgage Loans”) secured by
first liens on one- to four-family residential properties.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
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
Seller, the Master Servicer, the Servicer, the Trust Administrator or the
Trustee 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
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”) among
the Depositor, DLJ Mortgage Capital, Inc., as seller (in such capacity, the
“Seller”), Xxxxxx, Xxxx & Xxxxxxxx Mortgage Corp., as servicer (in such
capacity, the “Servicer”), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the “Master Servicer”) and as trust administrator (in such capacity,
the “Trust Administrator”), and U.S. Bank National Association, 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 countersigned by an authorized signatory of
the
Trust Administrator.
E-3
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2006.
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
By_________________________________________
Countersigned:
By
___________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
E-4
EXHIBIT
F
FORM
OF
LOST NOTE AFFIDAVIT
F-1
EXHIBIT
G
[Reserved]
G-1
EXHIBIT
H
REVERSE
OF CERTIFICATES
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit
Suisse First Boston Mortgage Securities Corp.,
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4
Class
-[ ]
This
Certificate is one of a duly authorized issue of Certificates designated as
Credit Suisse First Boston Mortgage Securities Corp., TBW Mortgage-Backed
Pass-Through Certificates, Series 2006-4, 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 Certificate Account for payment
hereunder and that neither the Trustee nor the Trust Administrator is 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 Trustee and the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th
day of
each month, or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (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 and each Class of Certificates
is the close of business on the last Business Day of the calendar month
immediately preceding the calendar 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 Trust 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 Corporate Trust Office or such other location specified in the notice
to
Certificateholders of such final distribution.
H-1
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee,
the
Trust Administrator and the rights of the Certificateholders under the Agreement
at any time by the Depositor, the Master Servicer, the Seller, the Trustee
and
the Trust 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 Trust Administrator upon surrender of this Certificate for registration
of
transfer at the Corporate Trust Office or the office or agency maintained by
the
Trust Administrator in Minneapolis, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Trust Administrator and
the
Certificate Registrar duly executed by the holder hereof or such holder’s
attorney duly authorized in writing, and thereupon one or more new Certificates
of 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 Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Seller, the Trustee and the
Trust Administrator and any agent of the Depositor, the Servicer, the Master
Servicer, the Seller, the Trustee or the Trust Administrator may treat the
Person in whose name this Certificate is registered as the owner hereof for
all
purposes, and none of the Depositor, the Servicer, the Master Servicer, the
Seller, the Trustee, the Trust Administrator or 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 10% of the aggregate Stated Principal Balance
Mortgage Loans as of the Cut-off Date, the Servicer will have the option to
purchase, in whole, from the Trust Fund all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans at a purchase price
determined as provided in the Agreement. If the Servicer does not exercise
such
purchase options, on any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 5% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, the Trust
Administrator will solicit bids for the Mortgage Loans and all property acquired
in respect of such Mortgage Loans in an auction procedure as provided in the
Agreement.
H-2
In
the
event that one of such optional terminations or auction purchases does not
occur, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund
or
the disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death
of
the last survivor of the descendants living at the date of the Agreement of
a
certain person named in the Agreement or (ii) the Distribution Date following
the third anniversary of the scheduled maturity date of the Mortgage Loan having
the latest scheduled maturity date as of the Cut-off Date. 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.
H-3
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 Trust 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 |
H-4
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.
H-5
EXHIBIT
I
FORM
OF SERVICER INFORMATION
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
I-1
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
If
applicable:
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
I-2
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
·
|
ASUM-
|
Approved
Assumption
|
|
·
|
BAP-
|
Borrower
Assistance Program
|
|
·
|
CO-
|
Charge
Off
|
|
·
|
DIL-
|
Deed-in-Lieu
|
|
·
|
FFA-
|
Formal
Forbearance Agreement
|
|
·
|
MOD-
|
Loan
Modification
|
|
·
|
PRE-
|
Pre-Sale
|
|
·
|
SS-
|
Short
Sale
|
|
·
|
MISC-
|
Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field should show the current status of the property code as
follows:
·
|
Mortgagor
|
·
|
Tenant
|
·
|
Unknown
|
·
|
Vacant
|
The
Property
Condition
field should show the last reported condition of the property as follows:
·
|
Damaged
|
·
|
Excellent
|
·
|
Fair
|
·
|
Gone
|
·
|
Good
|
·
|
Poor
|
·
|
Special
Hazard
|
·
|
Unknown
|
I-3
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field should show the Reason for Delinquency as follows:
Delinquency
Code
|
Delinquency
Description
|
001
|
FNMA-Death
of principal mortgagor
|
002
|
FNMA-Illness
of principal mortgagor
|
003
|
FNMA-Illness
of mortgagor’s family member
|
004
|
FNMA-Death
of mortgagor’s family member
|
005
|
FNMA-Marital
difficulties
|
006
|
FNMA-Curtailment
of income
|
007
|
FNMA-Excessive
Obligation
|
008
|
FNMA-Abandonment
of property
|
009
|
FNMA-Distant
employee transfer
|
011
|
FNMA-Property
problem
|
012
|
FNMA-Inability
to sell property
|
013
|
FNMA-Inability
to rent property
|
014
|
FNMA-Military
Service
|
015
|
FNMA-Other
|
016
|
FNMA-Unemployment
|
017
|
FNMA-Business
failure
|
019
|
FNMA-Casualty
loss
|
022
|
FNMA-Energy
environment costs
|
023
|
FNMA-Servicing
problems
|
026
|
FNMA-Payment
adjustment
|
027
|
FNMA-Payment
dispute
|
029
|
FNMA-Transfer
of ownership pending
|
030
|
FNMA-Fraud
|
031
|
FNMA-Unable
to contact borrower
|
INC
|
FNMA-Incarceration
|
I-4
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field should show the Status of Default as follows:
Status
Code
|
Status
Description
|
09
|
Forbearance
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
24
|
Government
Seizure
|
26
|
Refinance
|
27
|
Assumption
|
28
|
Modification
|
29
|
Charge-Off
|
30
|
Third
Party Sale
|
31
|
Probate
|
32
|
Military
Indulgence
|
43
|
Foreclosure
Started
|
44
|
Deed-in-Lieu
Started
|
49
|
Assignment
Completed
|
61
|
Second
Lien Considerations
|
62
|
Veteran’s
Affairs-No Bid
|
63
|
Veteran’s
Affairs-Refund
|
64
|
Veteran’s
Affairs-Buydown
|
65
|
Chapter
7 Bankruptcy
|
66
|
Chapter
11 Bankruptcy
|
67
|
Chapter
13 Bankruptcy
|
I-5
Exhibit
3: Standard File Layout - Master Servicing
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported
by the
Servicer.
|
4
|
Max
length of 6
|
6
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
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.
|
|
MM/DD/YYYY
|
10
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
I-6
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the
current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for
the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable
for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as
reported by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
I-7
Exhibit
4 : Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
(a)
|
(b)
|
The
numbers on the 332 form correspond with the numbers listed
below.
|
Liquidation
and Acquisition Expenses:
1.
|
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as agreed.
For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
3.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage
Loan as calculated on a monthly basis. For documentation, an Amortization
Schedule from date of default through liquidation breaking out the
net
interest and servicing fees advanced is
required.
|
4-12.
|
Complete
as applicable. Required
documentation:
|
* For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
* For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
* Other
expenses - copies of corporate advance history showing all payments
* REO
repairs > $1500 require explanation
* REO
repairs >$3000 require evidence of at least 2 bids.
* Short
Sale or Charge Off require P&L supporting the decision and WFB’s approved
Officer Certificate
* Unusual
or extraordinary items may require further documentation.
13.
|
The
total of lines 1 through 12.
|
I-8
(c)
|
Credits:
|
14-21.
|
Complete
as applicable. Required
documentation:
|
* Copy
of the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow Agent / Attorney
Letter
of Proceeds Breakdown.
* Copy
of EOB for any MI or gov't guarantee
* All
other credits need to be clearly defined on the 332
form
22.
|
The
total of lines 14 through 21.
|
Please
Note:
|
For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line
(18b)
for Part B/Supplemental proceeds.
|
Total
Realized Loss (or Amount of Any Gain)
23.
|
The
total derived from subtracting line 22 from 13. If the amount represents
a
realized gain, show
the amount in parenthesis ( ).
|
I-9
Exhibit 3A: Calculation
of Realized Loss/Gain Form 332
Prepared
by:
__________________
Date:
_______________
|
|
Phone:
______________________ Email
Address:_____________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
XXXXX
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO
Sale 3rd
Party
Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or
cramdown Yes No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
(5)
|
Taxes
(see page 2)
|
________________
|
(5)
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
________________
|
(7)
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
(12)
|
Other
(itemize)
|
________________
|
(12)
|
Cash
for Keys__________________________
|
________________
|
(12)
|
|
HOA/Condo
Fees_______________________
|
________________
|
(12)
|
|
______________________________________
|
________________
|
(12)
|
|
Total
Expenses
|
$
_______________
|
(13)
|
|
Credits:
|
|||
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
________________
|
(18a)
|
HUD
Part A
|
|||
________________
|
(18b)
|
||
HUD
Part B
|
|||
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
_________________________________________
|
________________
|
(21)
|
|
Total
Credits
|
$________________
|
(22)
|
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
(23)
|
I-10
Escrow
Disbursement Detail
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of
Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
I-11
EXHIBIT
J
FORM
OF TRUST RECEIPT AND INITIAL CERTIFICATION
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
DLJ
Mortgage Capital, Inc.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Re:
|
Pooling
and Servicing Agreement (“Pooling and Servicing Agreement”) relating to
[__________________] TBW Mortgage-Backed Pass-Through Certificates,
Series
200_-___
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling
and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that, except
for the exceptions noted on the schedule attached hereto, it has (a) received
an
original Mortgage Note with respect to each Mortgage Loan listed on the Mortgage
Loan Schedule and (b) received an original Mortgage (or a certified copy
thereof) with respect to each Mortgage Loan listed on the Mortgage Loan Schedule
in accordance with Section 2.01 of the Pooling and Servicing Agreement. The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically mentioned above. The Trustee makes
no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents delivered in accordance
with Section 2.01 of the Pooling and Servicing Agreement or any of the Mortgage
Loans identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
The
Trustee acknowledges receipt of notice that the Depositor has granted to the
Trustee for the benefit of the Certificateholders a security interest in all
of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
Capitalized
terms used herein without definition shall have the meaning assigned to them
in
the Pooling and Servicing Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:__________________________________________
Authorized
Representative
J-1
EXHIBIT
K
FORM
OF
TRUST RECEIPT AND FINAL CERTIFICATION
Trust
Receipt #__________
Cut-off
Date Principal Balance $__________
Xxxxx
Fargo Bank, N.A.,
as
Trust
Administrator and Master Servicer for the
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4 Trust
0000
Xxx
Xxxxxxxxx Xxxx,
Xxxxxxxx,
Xxxxxxxx 00000
U.S.
Bank
National Association,
as
Trustee for the
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4 Trust
Corporate
Trust Services - EP-MN-WS3D
00
Xxxxxxxxxx Xxxxxx
Xx.
Xxxx,
Xxxxxxxxx 00000-0000
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxx
Re:
|
Custodial
Agreement, dated as of August 1, 2006, among U.S. Bank National
Association, as Trustee, Xxxxx Fargo Bank, N.A., as Trust Administrator
and Colonial Bank, N.A., as
Custodian.
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 6 of the above-referenced Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that as to each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or any Mortgage Loan listed on the attachment hereto) it has
reviewed the Custodial Files and has determined that (i) all documents required
to be delivered to it pursuant to Sections 2(i)-(ix) of the Custodial Agreement
are in its possession; (ii) such documents have been reviewed by it and appear
regular on their face and related to such Mortgage Loan; and (iii) each Mortgage
Note has been endorsed as provided in Section 2(i) of the Custodial Agreement
and each Mortgage has been assigned in accordance with Section 2(v) of the
Custodial Agreement. The Custodian makes no representations as to (i) the
validity, legality, effectiveness, enforceability, sufficiency, genuineness,
due
authorization or execution of any of the documents contained in each Custodial
File or of any of the Mortgage Loans or (ii) the collectability, insurability,
perfection, priority or suitability of any such Mortgage Loan or any other
documents contained in each Custodial File.
K-1
The
Custodian hereby confirms that it is holding each such Custodial File as agent
and bailee of, and custodian for the exclusive use and benefit, and subject
to
the sole direction, of Trustee pursuant to the terms and conditions of the
Custodial Agreement.
This
Trust Receipt and Final Certification is not divisible or negotiable.
The
Custodian will accept and act on instructions with respect to the Mortgage
Loans
subject hereto upon surrender of this Trust Receipt and Initial Certification
at
its office at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, Attention:
Document Custodian.
K-2
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
COLONIAL
BANK, N.A.,
as
Custodian
By:
___________________________________
Name:
Title:
Name:
Title:
K-3
EXHIBIT
L
FORM
OF REQUEST FOR RELEASE
To:
[Address]
Re:
|
Custodial
Agreement, dated as of August 1, 2006, among U.S. Bank National
Association, as Trustee, Xxxxx Fargo Bank, N.A., as Trust Administrator
and Colonial Bank, N.A., as
Custodian.
|
In
connection with the administration of the Mortgage Loans held by you as the
Custodian on behalf of the Trustee, 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:
Reason
for Requesting Documents
(check
one)
____
|
1.
|
Mortgage
Loan Paid in Full. (The Trustee or the Master Servicer or Servicer
hereby
certifies that all amounts received in connection therewith have
been
credited to the account of the Trustee or the Master Servicer or
Servicer.)
|
____
|
2.
|
Mortgage
Loan Liquidated By ____________________________ (The Trustee or the
Master
Servicer or Servicer hereby certifies that all proceeds of foreclosure,
insurance, condemnation or other liquidation have been finally received
and credited to the account of the Trustee or the Master Servicer
or
Servicer.)
|
____
|
3.
|
Mortgage
Loan in Foreclosure
|
____
|
4.
|
Other
(explain)
|
If
box 1
or 2 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.
L-1
If
box 3
or 4 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.
U.S.
BANK
NATIONAL ASSOCIATION, as Trustee
By:
________________________________________
Name:
Title:
Name:
Title:
Date: ________________________________________
Or
____________________________,
as
[Servicer] [Master Servicer]
By:
________________________________________
Name:
Title:
Name:
Title:
Date:
_________________________________________
Acknowledgment
of Documents returned to the Custodian:
COLONIAL
BANK, N.A.,
as
Custodian
By:
________________________________________
Name:
Title:
Name:
Title:
Date:
_________________________________________
L-2
EXHIBIT
M
FORM
OF TRANSFEROR CERTIFICATE
[date]
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
TBW 2006-4
Re:
|
TBW
Mortgage-Backed Pass-Through Certificates, Series
2006-4
|
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 Class AR Certificate, we have no knowledge
the Transferee is not a Permitted Transferee.
Very
truly yours,
___________________________________
Print
Name of Transferor
By:_____________________________________
Authorized
Officer
M-1
EXHIBIT
N-1
FORM
OF INVESTMENT LETTER
[date]
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
TBW 2006-4
Re:
|
TBW
Mortgage-Backed Pass-Through Certificates, Series
2006-4
|
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 are an “accredited investor,”
as defined in Regulation D under the Act, and 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 (i) we are not an employee benefit plan or other retirement arrangement
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended,
nor
are we using the assets of any such plan or other retirement arrangement, (ii)
we are providing an Opinion of Counsel which establishes to the reasonable
satisfaction of the Trust Administrator that the purchase and holding of ERISA
Restricted Certificates by, on behalf of or with “plan assets” of such plan or
other retirement arrangement will not result in non-exempt prohibited
transactions under Section 406 of ERISA or Section 4975 of the Code, and will
not subject the Depositor, the Trustee, the Trust Administrator, the Master
Servicer, the Servicer or any other servicers to any obligation in addition
to
those undertaken in this Agreement or (iii) if, in the case of ERISA Restricted
Certificates that have been the subject of an ERISA-Qualifying Underwriting,
we
are an insurance company, we are 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
our purchase and holding of such Certificates are covered under Sections I
and
III of PTCE 95-60, (e) we are acquiring the Certificates for investment for
our
own account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of
the
Certificates in accordance with clause (g) below), (f) 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, or taken any other action which would result in a violation of Section
5 of the Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt
from
such registration requirements, and if requested, we will at our expense provide
an opinion of counsel satisfactory to the addressees of this Certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any
conditions for transfer set forth in the Pooling and Servicing
Agreement.
Very
truly yours,
________________________
Print
Name of Transferee
By:
Authorized
Officer
N-1-1
EXHIBIT
N-2
FORM
OF RULE 144A LETTER
[date]
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
TBW 2006-4
Re:
|
TBW
Mortgage-Backed Pass-Through Certificates, Series
2006-4
|
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 (i) we are not an employee benefit plan or other
retirement arrangement that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended, nor are we using the assets of any such plan or other
retirement arrangement, (ii) we are providing an Opinion of Counsel which
establishes to the reasonable satisfaction of the Trust Administrator that
the
purchase and holding of ERISA Restricted Certificates by, on behalf of or with
“plan assets” of such plan will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and will
not
subject the Depositor, the Trustee, the Trust Administrator, the Master
Servicer, the Servicer or any other servicers to any obligation in addition
to
those undertaken in this Agreement or (iii) if, in the case of an ERISA
Restricted Certificates that have been the subject of an ERISA-Qualifying
Underwriting, we are an insurance company, we are 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 our 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 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 Act or that would
render the disposition of the Certificates a violation of Section 5 of the
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, (f) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Act (“Rule 144A”) and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex
2,
(g) we are aware that the sale to us is being made in reliance on Rule 144A,
and
(i) 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 (A) 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 (B)
pursuant to another exemption from registration under the Act.
Very
truly yours,
________________________
Print
Name of Transferee
By:
Authorized
Officer
N-2-1
EXHIBIT
N-3
FORM
OF REGULATION S LETTER
[date]
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx Xxxx
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
TBW 2006-4
Re:
|
TBW
Mortgage-Backed Pass-Through Certificates, Series
2006-4
|
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 (i) we are not an employee benefit plan
or
arrangement that is subject to the Employee Retirement Income Security Act
of
1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we using the assets of any such plan or arrangement, (ii)
we
are providing an Opinion of Counsel which establishes to the reasonable
satisfaction of the Trust Administrator that the purchase and holding of
ERISA-Restricted Certificates by, on behalf of or with “plan assets” of such
plan will not result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, and will not subject
the Depositor, the Trustee, the Trust Administrator, the Master Servicer or
the
Servicer to any obligation in addition to those undertaken in this Agreement
or
(iii) if, in the case of an ERISA-Restricted Certificates that have been the
subject of an ERISA-Qualifying Underwriting, we are an insurance company, we
are
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 our 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 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 Act or that would render the disposition of the Certificates a violation
of
Section 5 of the 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,] (f) we are not a “U.S. person” within the meaning
of Regulation S under the Act (a “Non-U.S. Person”), (g) we are aware that the
sale to us is being made in reliance on Regulation S, and (h) we are acquiring
the Certificates for our own account or for resale pursuant to Regulation S
under the Act and further, understand that such Certificates may be resold,
pledged or transferred only (A) 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, (B) to a
Non-U.S. Person in accordance with Regulation S under the Act or
(C) pursuant to another exemption from registration under the
Act.
Very
truly yours,
[Print
Name of Transferee]
By:
Name:
Title:
N-3-1
EXHIBIT
O
FORM
OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE
OF
|
)
|
:
ss.:
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], being first duly sworn, deposes and says:
1. That
he
is [Title of Officer] or [Name of Owner] (record or beneficial owner (the
“Owner”) of the Class AR Certificates (the “Class AR Certificates”)), a [savings
institution] [corporation] duly organized and existing under the laws of [the
State of
] [the
United States], on behalf of which he makes this affidavit and
agreement.
2. That
the
Owner (i) is not and will not be a “disqualified organization” as of [date of
transfer] within the meaning of Section 860E(e)(5) of the Internal Revenue
Code
of 1986, as amended (the “Code”), (ii) will endeavor to remain other than a
disqualified organization for so long as it retains its ownership interest
in
the Class AR Certificates, and (iii) is acquiring the Class AR Certificates
for its own account. A “Permitted Transferee” is any person other than a
“disqualified organization”. (For this purpose, a “disqualified organization”
means the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality all
of
the activities of which are subject to tax and, except for the Federal Home
Loan
Mortgage Corporation, a majority of whose board of directors is not selected
by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers’ cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income).
3. That
the
Owner is aware (i) of the tax that would be imposed on transfers of Class AR
Certificates to disqualified organizations under the Code; (ii) that such tax
would be on the transferor, or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such person
an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Class AR Certificates may be “noneconomic residual
interests” within the meaning of Treasury regulations promulgated pursuant to
the Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
if a significant purpose of the transfer was to enable the transferor to impede
the assessment or collection of tax.
4. That
the
Owner is aware of the tax imposed on a “pass-through entity” holding Class AR
Certificates if at any time during the taxable year of the pass-through entity
a
non-Permitted Transferee is the record holder of an interest in such entity.
(For this purpose, a “pass through entity” includes a regulated investment
company, a real estate investment trust or common trust fund, a partnership,
trust or estate, and certain cooperatives.)
O-1
5. That
the
Owner is aware that the Trustee will not register the Transfer of any Class
AR
Certificates unless the transferee, or the transferee’s agent, delivers to it an
affidavit and agreement, among other things, in substantially the same form
as
this affidavit and agreement. The Owner expressly agrees that it will not
consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are
false.
6. That
the
Owner has reviewed the restrictions set forth on the face of the Class AR
Certificates and the provisions of Section 6.02 of the Pooling and Servicing
Agreement under which the Class AR Certificates were issued. The Owner expressly
agrees to be bound by and to comply with such restrictions and
provisions.
7. That
the
Owner consents to any additional restrictions or arrangements that shall be
deemed necessary upon advice of counsel to constitute a reasonable arrangement
to ensure that the Class AR Certificates will only be owned, directly or
indirectly, by an Owner that is a Permitted Transferee.
8. That
the
Owner’s Taxpayer Identification Number is ________________.
9. That
the
Owner is a citizen or resident of the United States, a corporation, partnership
or other entity created or organized in, or under the laws of, the United
States, any State thereof or the District of Columbia, or an estate or trust
whose income from sources without the United States is includable in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United
States.
10. That
no
purpose of the Owner relating to the purchase of the Class AR Certificate by
the
Owner is or will be to impede the assessment or collection of tax.
11. That
the
Owner has no present knowledge or expectation that it will be unable to pay
any
United States taxes owed by it so long as any of the Certificates remain
outstanding.
12. That
the
Owner has no present knowledge or expectation that it will become insolvent
or
subject to a bankruptcy proceeding for so long as any of the Certificates remain
outstanding.
13. That
no
purpose of the Owner relating to any sale of the Class AR Certificate by the
Owner will be to impede the assessment or collection of tax.
14. The
Owner
hereby agrees to cooperate with the Trustee and to take any action required
of
it by the Code or Treasury regulations thereunder (whether now or hereafter
promulgated) in order to create or maintain the REMIC status of the Trust
Fund.
O-2
15. That
the
Owner
(a)
is
not an employee benefit plan or other retirement arrangement subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act
of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code
of 1986, as amended (the “Code”) (a “Plan”), or any other person purchasing any
Certificate with the assets of any such plan or other retirement
arrangement;
(b)
is an
insurance company, the source of funds to be used by it to purchase the
Certificates is an “insurance company general account” (within the meaning of
Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60), and
the purchase is being made in reliance upon the availability of the exemptive
relief afforded under Sections I and III of PTCE 95-60; or
(c)
provides an Opinion of Counsel which establishes to the reasonable satisfaction
of the Trustee that the purchase and holding of an ERISA Restricted Certificate
by, on behalf of or with the assets of such plan will not result in non-exempt
prohibited transactions under Section 406 of ERISA or Section 4975 of the Code,
and will not subject the Depositor, the Trustee, the Trust Administrator, the
Master Servicer, the Servicer or any other servicers to any obligation in
addition to those undertaken in this Agreement.
16. The
Owner
has provided financial statements or other financial information requested
by
the transferor in connection with the transfer of the Residual Certificates
to
permit the transferor to assess the financial capability of the Owner to pay
any
such taxes.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Title
of
Officer] and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this ____ day of ___________.
[NAME
OF
OWNER]
By:
______________________________________
[Name
of
Officer]
[Title
of
Officer]
[Corporate
Seal]
ATTEST:
_________________________________
[Assistant]
Secretary
O-3
Personally
appeared before me the above-named [Name of Officer], known or proved to me
to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Owner, and acknowledged to me that he executed the same as
his
free act and deed and the free act and deed of the Owner.
Subscribed
and sworn before me this _____ day of _______________________.
_______________________________________
NOTARY
PUBLIC
COUNTY
OF
___________________________________
STATE
OF
_____________________________________
My
Commission expires the _____day of
__________________,
20____.
O-4
EXHIBIT
P
FORM
OF TRANSFER CERTIFICATE
[date]
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
TBW 2006-4
Re:
|
TBW
Mortgage-Backed Pass-Through Certificates, Series 2006-4, Class AR
(the
“Certificates”)
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the sale by _________________
(the
“Seller”) to ____________________________________ (the “Purchaser”) of a
_______% Percentage Interest in the above referenced Certificates, pursuant
to
Section 6.02 of the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”), dated as of August 1, 2006, The Trust Fund was created pursuant to
a Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the “Agreement”) among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the “Seller”), Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., as
servicer (in such capacity, the “Servicer”), Xxxxx Fargo Bank, N.A., as master
servicer (in such capacity, the “Master Servicer”) and as trust administrator
(in such capacity, the “Trust Administrator”), and U.S. Bank National
Association, as trustee (the “Trustee”). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
1. No
purpose of the Seller relating to sale of the Certificate by the Seller to
the
Purchaser is or will be to enable the Seller to impede the assessment or
collection of any tax.
2. The
Seller understands that the Purchaser has delivered to the Trustee a transfer
affidavit and agreement in the form attached to the Pooling and Servicing
Agreement as Exhibit O. The Seller does not know or believe that any
representation contained therein is false.
3. The
Seller has no actual knowledge that the proposed Transferee is not a Permitted
Transferee.
P-1
4. The
Seller has no actual knowledge that the Purchaser would be unwilling or unable
to pay taxes due on its share of the taxable income attributable to the
Certificate.
5. The
Seller has conducted a reasonable investigation of the financial condition
of
the Purchaser and, as a result of the investigation, found that the Purchaser
has historically paid its debts as they came due, and found no significant
evidence to indicate that the Purchaser will not continue to pay its debts
as
they come due in the future.
6. The
Purchaser has represented to the Seller that, if the Certificate constitutes
a
noneconomic residual interest, it (i) understands that as holder of a
noneconomic residual interest it may incur tax liabilities in excess of any
cash
flows generated by the interest, and (ii) intends to pay taxes associated with
its holding of the Certificate as they become due.
Very
truly yours,
[SELLER]
By:
_________________________________
Name:
Title:
Name:
Title:
P-2
EXHIBIT
Q
RELEVANT
SERVICING CRITERIA
The
assessment of compliance to be delivered by the Master Servicer and the Trust
Administrator shall address, at a minimum, the criteria identified as below
as
“Applicable Servicing Criteria” with respect to such party:
Regulation
AB Reference
|
Servicing
Criteria
|
Servicers
|
Master
Servicer
|
Trust
Administrator
|
General
Servicing Considerations
|
||||
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
|
Cash
Collection and Administration
|
||||
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
Q-1
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
||
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
X
|
Investor
Remittances and Reporting
|
||||
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
X
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
X
|
Pool
Asset Administration
|
||||
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
||
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
Q-2
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
||
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
||
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
||
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
Q-3
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
[NAME
OF COMPANY]
Date: _________________________
By:
Name:
________________________________
Title:
_________________________________
Q-4
EXHIBIT
R
Additional
Form 10-D Disclosure
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
Item
on Form 10-D
|
Party
Responsible
|
Item
1: Distribution and Pool Performance Information
|
|
Information
included in the [Monthly Statement]
|
Servicer
Master
Servicer
Trust
Administrator
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Trust Administrator and Depositor
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
▪
Depositor
|
Depositor
|
▪
Trustee
|
Trustee
|
▪
Trust Administrator
|
Trust
Administrator
|
▪
Master Servicer
|
Master
Servicer
|
▪
Custodian
|
Custodian
|
▪
1110(b) Originator
|
Depositor
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Trust
Administrator)
|
Servicer
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
R-1
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
Item
on Form 10-D
|
Party
Responsible
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Trust
Administrator
Trustee
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Trust
Administrator
Trustee
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
▪
Determining current significance percentage
|
Depositor
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
R-2
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
Item
on Form 10-D
|
Party
Responsible
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
Item
9: Exhibits
|
|
Monthly
Statement to Certificateholders
|
Trust
Administrator
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
R-3
EXHIBIT
S
FORM
OF
MONTHLY STATEMENT TO CERTIFICATEHOLDERS
(i)
|
with
respect to each Class of Certificates which are not Notional Amount
Certificates and, unless otherwise stated, the related Distribution
Date,
|
(a)
|
the
Initial Class Principal Balance of such Class as of the Cut-off
Date;
|
(b)
|
the
Class Principal Balance of such Class before giving effect to the
distribution of principal and
interest;
|
(c)
|
the
amount of the related distribution on such Class allocable to
interest;
|
(d)
|
the
amount of the related distribution on such Class allocable to
principal;
|
(e)
|
the
sum of the principal and interest payable to such
Class;
|
(f)
|
the
Realized Loss allocable to such
Class;
|
(g)
|
the
Carryforward Interest allocable to such
Class;
|
(h)
|
the
Class Principal Balance of such Class after giving effect to the
distribution of principal and
interest;
|
(i)
|
the
Pass-Through Rate for such Class;
|
(j)
|
any
Basis Risk Shortfall allocable to such Class, if such amount is greater
than zero;
|
(k)
|
any
shortfall in principal allocable to such Class, if such amount is
greater
than zero;
|
(ii)
|
with
respect to each Class of Certificates which are Notional Amount
Certificates and, unless otherwise stated, the related Distribution
Date,
|
(a)
|
the
Notional Amount of such Class as of the Cut-off
Date;
|
(b)
|
the
Notional Amount of such Class before giving effect to the distribution
of
interest;
|
(c)
|
the
amount of the related distribution on such Class allocable to
interest;
|
(d)
|
the
amount of the related distribution on such Class allocable to
principal;
|
(e)
|
the
sum of the principal and interest payable to such
Class;
|
S-1
(f)
|
the
Realized Loss allocable to such
Class;
|
(g)
|
the
Carryforward Interest allocable to such
Class;
|
(h)
|
the
Notional Amount of such Class after giving effect to the distribution
of
interest;
|
(i)
|
the
Pass-Through Rate for such Class;
|
(j)
|
any
Basis Risk Shortfall allocable to such Class, if such amount is greater
than zero;
|
(iii)
|
with
respect to a $1000 factor of the Initial Class Principal Balance
of each
Class of Certificates which are not Notional Amount Certificates
and the
related Distribution Date,
|
(a)
|
the
CUSIP number assigned to such
Class;
|
(b)
|
the
Class Principal Balance of such Class factor prior to giving effect
to the
distribution of principal and
interest;
|
(c)
|
the
amount of the related distribution allocable to interest on such
Class
factor;
|
(d)
|
the
amount of the related distribution allocable to principal on such
Class
factor;
|
(e)
|
the
sum of the principal and interest payable to such Class
factor;
|
(f)
|
the
Class Principal Balance of such Class factor after giving effect
to the
distribution of principal and interest;
|
(iv)
|
with
respect to a $1000 factor of the Initial Class Principal Balance
of each
Class of Certificates which are Notional Amount Certificates and
the
related Distribution Date,
|
(a)
|
the
CUSIP number assigned to such
Class;
|
(b)
|
the
Notional Amount of such Class factor prior to giving effect to the
distribution of interest;
|
(c)
|
the
amount of the related distribution allocable to interest on such
Class
factor;
|
(d)
|
the
amount of the related distribution allocable to principal on such
Class
factor;
|
(e)
|
the
sum of the principal and interest payable to such Class
factor;
|
S-2
(f)
|
the
Notional Amount of such Class factor after giving effect to the
distribution of interest;
|
(v)
|
with
respect to the Mortgage Loans, and, unless otherwise stated, the
related
Distribution Date,
|
(a)
|
the
Scheduled Payment of principal;
|
(b)
|
the
amount of Principal Prepayments;
|
(c)
|
the
amount of principal allocable to the Mortgage Loans as a result of
repurchased Mortgage Loans;
|
(d)
|
the
Substitution Adjustment Amount;
|
(e)
|
the
amount of Net Liquidation Proceeds;
|
(f)
|
the
amount of Insurance Proceeds;
|
(g)
|
the
amount of any other distributions allocable to
principal;
|
(h)
|
the
number of Mortgage Loans as of the first day of the related Collection
Period;
|
(i)
|
the
aggregate Stated Principal Balance of the Mortgage Loans as of the
first
day of the related Collection
Period;
|
(j)
|
the
number of Mortgage Loans as of the last day of the related Collection
Period;
|
(k)
|
the
aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Collection
Period;
|
(l)
|
the
Master Servicing Fee;
|
(m)
|
the
sum of the Servicing Fee and the Mortgage Guaranty Insurance Policy
fees,
if applicable;
|
(n)
|
the
Trust Administrator Fee, if any;
|
(o)
|
the
amount of current Advances;
|
(p)
|
the
amount of outstanding Advances;
|
(q)
|
the
number and aggregate principal amounts of Mortgage Loans delinquent,
using
the [MBA or OTC] method (1) 30 to 59 days, (2) 60 to 89 days and
(3) 90
days or more, including delinquent bankrupt Mortgage Loans but excluding
foreclosure and REO Mortgage Loans;
|
S-3
(r)
|
the
number and aggregate principal amounts of Mortgage Loans that are
currently in bankruptcy, but not
delinquent;
|
(s)
|
the
number and aggregate principal amounts of Mortgage Loans that are
in
foreclosure;
|
(t)
|
the
Rolling Three Month Delinquency
Rate;
|
(u)
|
the
number and aggregate principal amount of any REO properties as of
the
close of business on the Determination Date preceding such Distribution
Date;
|
(v)
|
current
Realized Losses;
|
(w)
|
cumulative
Realized Losses;
|
(x)
|
the
weighted average term to maturity of the Mortgage Loans as of the
close of
business on the last day of the calendar month preceding the related
Distribution Date;
|
(y)
|
the
number and principal amount of claims submitted under the Mortgage
Guaranty Insurance Policy, as
applicable;
|
(z)
|
[Reserved];
|
(aa)
|
the
number of Mortgage Loans that have Prepayment Penalties and for which
prepayments were made during the related Collection Period, as
applicable;
|
(bb)
|
the
aggregate principal balance of Mortgage Loans that have Prepayment
Penalties and for which prepayments were made during the related
Collection Period, as applicable;
|
(cc)
|
the
aggregate amount of Prepayment Penalties collected during the related
Collection Period, as applicable;
|
(dd)
|
current
Realized Losses allocated to each Mortgage Loan that has previously
been
allocated a Realized Loss;
|
(ee)
|
cumulative
Realized Losses allocated to each Mortgage Loan that has previously
been
allocated a Realized Loss;
|
(ff)
|
current
Recoveries;
|
S-4
(gg)
|
cumulative
Recoveries;
|
(hh)
|
current
aggregate Stated Principal Balance of Qualified Substitute Mortgage
Loans
substituted for Deleted Mortgage Loans;
|
(ii)
|
cumulative
aggregate Stated Principal Balance of Qualified Substitute Mortgage
Loans
substituted for Deleted Mortgage
Loans;
|
(vi)
|
with
respect to each Rounding Account for the applicable Class of Certificates
and, unless otherwise stated, the related Distribution
Date,
|
(a)
|
the
related Rounding Account balance immediately before the related
Distribution Date;
|
(b)
|
additions
to the related Rounding Account immediately before the related
Distribution Date;
|
(c)
|
withdrawals
from the related Rounding Account immediately after the related
Distribution Date;
|
(d)
|
the
related Rounding Account balance immediately after the related
Distribution Date;
|
(vii)
|
with
respect to the overcollateralized Certificates and, unless otherwise
stated, the related Distribution
Date,
|
(a)
|
the
Targeted Overcollateralization
Amount;
|
(b)
|
the
Overcollateralization Amount;
|
(c)
|
the
Overcollateralization Deficiency;
|
(d)
|
the
Overcollateralization Release
Amount;
|
(e)
|
the
Monthly Excess Interest;
|
(f)
|
the
amount of any payment to the Class X Certificates;
and
|
(viii)
|
with
respect to the Mortgage Loans and, unless otherwise stated, the related
Distribution Date,
|
(d)
|
for
each Servicer that is servicing any of such Mortgage Loans, the aggregate
Stated Principal Balance of Mortgage Loans being serviced by such
Servicer
as of such Distribution Date.
|
S-5
EXHIBIT
T
Form
8-K
Disclosure Information
FORM
8-K DISCLOSURE INFORMATION
|
|
Item
on Form 8-K
|
Party
Responsible
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties (as to themselves)
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties (as to themselves)
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
▪
Depositor
|
Depositor
|
▪
Master Servicer
|
Master
Servicer
|
▪
Affiliated Servicer
|
Servicer
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
▪
Other material servicers
|
Servicer
|
▪
Trustee
|
Trustee
|
T-1
FORM
8-K DISCLOSURE INFORMATION
|
|
Item
on Form 8-K
|
Party
Responsible
|
▪
Trust Administrator
|
Trust
Administrator
|
▪
Significant Obligor
|
Depositor
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
▪
Derivative Counterparty
|
Depositor
|
▪
Custodian
|
Custodian
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Trust
Administrator
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Trust
Administrator
Depositor
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
Item
6.02- Change of Servicer or Trust Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Trust Administrator/Depositor/
Servicer/Trustee
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
T-2
FORM
8-K DISCLOSURE INFORMATION
|
|
Item
on Form 8-K
|
Party
Responsible
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Trust
Administrator
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
Item
6.04- Failure to Make a Required Distribution
|
Trust
Administrator
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
Item
7.01- Reg FD Disclosure
|
All
parties (as to themselves)
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
T-3
EXHIBIT
U
FORM
OF
ANNUAL CERTIFICATION
Re: The
Pooling
and Servicing Agreement, dated as of August 1, 2006 (the “Agreement”), by and
among by and among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such
capacity, the “Seller”), Xxxxxx, Xxxx & Xxxxxxxx Mortgage Corp., as servicer
(in such capacity, the “Servicer”), Xxxxx Fargo Bank, N.A., as master servicer
(in such capacity, the “Master Servicer”) and as trust administrator (in such
capacity, the “Trust Administrator”), and U.S. Bank National Association, as
trustee (the “Trustee”). I, ________________________________, the
_______________________ of [NAME OF COMPANY] (the “Company”), certify to the
Depositor, the Master Servicer, the Trust Administrator, and their officers,
with the knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed (i) the servicer compliance statement of the Company provided in
accordance with Section 14.06 of the Pooling and Servicing Agreement (the
“Compliance Statement”), (ii) the report on assessment of the Company’s
compliance with the servicing criteria provided in accordance with Section
14.07
of the Pooling and Servicing Agreement, (iii) the registered public accounting
firm’s attestation report provided in accordance with Section 14.08 of the
Pooling and Servicing Agreement (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the Trust Administrator
pursuant to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Trust
Administrator;
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
U-1
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to Trust Administrator. Any material instances
of
noncompliance described in such reports have been disclosed to Trust
Administrator. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
By:
________________________________
Name:
Title
Date:
U-2
EXHIBIT
V
Additional
Disclosure Notification
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
Email:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn:
Corporate Trust Services- TBW Mortgage Backed Trust Series 2006-4, TBW Mortgage
Pass-Through Certificates, Series 2006-4—SEC REPORT PROCESSING
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Article XIV of the Pooling and Servicing Agreement, dated as
of
August 1, 2006, by and among the Depositor, DLJ Mortgage Capital, Inc., as
seller (in such capacity, the “Seller”), Xxxxxx, Bean & Xxxxxxxx Mortgage
Corp., as servicer (in such capacity, the “Servicer”), Xxxxx Fargo Bank, N.A.,
as master servicer (in such capacity, the “Master Servicer”) and as trust
administrator (in such capacity, the “Trust Administrator”), and U.S. Bank
National Association, as trustee (the “Trustee”), 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:
V-1
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:
Name:
Title:
V-2
EXHIBIT
W
Additional
Form 10-K Disclosure
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
Item
on Form 10-K
|
Party
Responsible
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
Item
15: Exhibits, Financial Statement Schedules
|
Trust
Administrator
Depositor
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
Significant
Obligor Financial Information*
|
Depositor
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
▪
Determining current significance percentage
|
Depositor
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
W-1
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
Item
on Form 10-K
|
Party
Responsible
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Trust Administrator and Depositor
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
▪
Depositor
|
Depositor
|
▪
Trustee
|
Trustee
|
▪
Trust Administrator
|
Trust
Administrator
|
▪
Master Servicer
|
Master
Servicer
|
▪
Custodian
|
Custodian
|
▪
1110(b) Originator
|
Depositor
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Trust
Administrator)
|
Servicer
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
▪
Master Servicer
|
Master
Servicer
|
▪
Trust Administrator
|
Trust
Administrator
|
▪
Trustee
|
Trustee
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
W-2
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
Item
on Form 10-K
|
Party
Responsible
|
▪
Master Servicer
|
Master
Servicer
|
▪
Trust Administrator
|
Trust
Administrator
|
▪
Trustee
|
Trustee
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
▪
Master Servicer
|
Master
Servicer
|
▪
Trust Administrator
|
Trust
Administrator
|
▪
Trustee
|
Trustee
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
W-3
SCHEDULE
I
Mortgage
Loan Schedule
(On
File
With Trustee)
I-1
SCHEDULE
IIA
Representations
and Warranties of Seller - DLJ Mortgage Capital, Inc.
DLJMC,
in
its capacity as the Seller, hereby makes the representations and warranties
set
forth in this Schedule IIA to the Depositor, the Trustee and the Trust
Administrator, as of the Closing Date, or if so specified herein, as of the
Cut-off Date or such other date as may be specified.
(i) DLJMC
is
a corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation;
(ii) DLJMC
has
full corporate power to own its property, to carry on its business as presently
conducted and to enter into and perform its obligations under this
Agreement;
(iii) the
execution and delivery by DLJMC of this Agreement have been duly authorized
by
all necessary corporate action on the part of DLJMC; and neither the execution
and delivery of this Agreement, nor the consummation of the transactions herein
contemplated hereby, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on DLJMC or its properties or the certificate of incorporation or
by-laws of DLJMC, except those conflicts, breaches or defaults which would
not
reasonably be expected to have a material adverse effect on DLJMC’s ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(iv) the
execution, delivery and performance by DLJMC of this Agreement and the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made and, in connection
with the recordation of the Mortgages, powers of attorney or assignments of
Mortgages not yet completed;
(v) this
Agreement has been duly executed and delivered by DLJMC and, assuming due
authorization, execution and delivery by the Trustee, the Trust Administrator,
the Master Servicer, the Servicers and the Depositor, constitutes a valid and
binding obligation of DLJMC enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally);
and
IIA-1
(vi) to
the
knowledge of DLJMC, there are no actions, litigation, suits or proceedings
pending or threatened against DLJMC before or by any court, administrative
agency, arbitrator or governmental body (i) with respect to any of the
transactions contemplated by this Agreement or (ii) with respect to any other
matter which in the judgment of DLJMC if determined adversely to DLJMC would
reasonably be expected to materially and adversely affect DLJMC’s ability to
perform its obligations under this Agreement; and DLJMC is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement.
IIA-2
SCHEDULE
IIB
Representations
and Warranties of Master Servicer - Xxxxx
Fargo Bank, X.X.
Xxxxx
Fargo, in its capacity as the Master Servicer, hereby makes the representations
and warranties set forth in this Schedule IIB to the Depositor, the Trust
Administrator and the Trustee, as of the Closing Date, or if so specified
herein, as of the Cut-off Date or such other date as may be specified.
(i) Xxxxx
Fargo is a national banking association duly formed, validly existing and in
good standing and is qualified under the laws of each state where required
by
applicable law or is otherwise exempt under applicable law from such
qualification.
(ii) Xxxxx
Fargo has all requisite organizational power, authority and capacity to enter
into the Agreement and to perform the obligations required of it thereunder.
The
Agreement (assuming the due authorization and execution of the Agreement by
the
other parties thereto) constitutes a valid and legally binding agreement of
Xxxxx Fargo enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting the
enforceability of the rights of creditors.
(iii) None
of
the execution and delivery of the Agreement, the consummation of any other
transaction contemplated therein, or the fulfillment of or compliance with
the
terms of the Agreement, will result in the breach of, or constitute a default
under, any term or provision of the organizational documents of Xxxxx Fargo
or
conflict with, result in a material breach, violation or acceleration of or
constitute a material default under, the terms of any indenture or other
agreement or instrument to which Xxxxx Fargo is a party or by which it is bound,
or any statute, order, judgment, or regulation applicable to Xxxxx Fargo of
any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Xxxxx Fargo.
(iv) There
is
no action, suit, proceeding or investigation pending, or to Xxxxx Fargo’s
knowledge threatened, against Xxxxx Fargo before any court, administrative
agency or other tribunal (a) asserting the invalidity of the Agreement, (b)
seeking to prevent the consummation of any of the transactions contemplated
thereby or (c) which might materially and adversely affect the performance
by
Xxxxx Fargo of its obligations under, or the validity or enforceability of,
the
Agreement.
(v) No
consent, approval, authorization or order of any court, regulatory body or
governmental agency or court is required, under state or federal law prior
to
the execution, delivery and performance by Xxxxx Fargo of the Agreement or
the
consummation of the transactions contemplated by the Agreement.
IIB-1
SCHEDULE
IIIA
Representations
and Warranties of DLJMC - Mortgage Loans
DLJMC,
in
its capacity as Seller, hereby makes the representations and warranties set
forth in this Schedule IIIA to the Depositor, the Trustee, the Master Servicer,
the Servicer and the Trust Administrator, as of the Closing Date, or if so
specified herein, as of the Cut-off Date or such other date as may be specified,
with respect to the Mortgage Loans identified on Schedule I hereto, except
as
otherwise specified herein. Unless otherwise specified, each reference to a
“Mortgage Loan” in this Schedule IIIA shall mean a DLJMC Mortgage Loan, and each
reference to a “Mortgaged Property” shall mean a Mortgaged Property related to a
DLJMC Mortgage Loan.
(i) The
information set forth in Schedule I, with respect to the Mortgage Loans, is
complete, true and correct in all material respects;
(ii) [Reserved];
(iii) All
payments due prior to the Cut-off Date for such Mortgage Loan have been made
as
of the Closing Date, the Mortgage Loan is not 30 days or more delinquent in
payment; there are no material defaults under the terms of the Mortgage Loan;
(iv) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(v) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been recorded
or sent for recording to the extent any such recordation is required by law,
or,
necessary to protect the interest of the Depositor. No other instrument of
waiver, alteration or modification has been executed, and no Mortgagor has
been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in Schedule IA; the substance of
any
such waiver, alteration or modification has been approved by the issuer of
any
related Mortgage Guaranty Insurance Policy and title insurance policy, to the
extent required by the related policies;
(vi) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
IIIA-1
(vii) All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the FNMA Guides, against loss by
fire, hazards of extended coverage and such other hazards as are provided for
in
the FNMA Guides or by FHLMC, as well as all additional requirements set forth
in
Section 4.10 of this Agreement. All such standard hazard policies are in full
force and effect and on the date of origination contained a standard mortgagee
clause naming the Seller and its successors in interest and assigns as loss
payee and such clause is still in effect and all premiums due thereon have
been
paid. If required by the Flood Disaster Protection Act of 1973, as amended,
the
Mortgage Loan is covered by a flood insurance policy meeting the requirements
of
the current guidelines of the Federal Insurance Administration which policy
conforms to FNMA and FHLMC requirements, as well as all additional requirements
set forth in Section 4.10 of this Agreement. Such policy was issued by an
insurer acceptable under FNMA or FHLMC guidelines. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the Mortgagor’s cost and
expense, and on the Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor’s cost and expense and to
seek reimbursement therefor from the Mortgagor;
(viii) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and predatory and abusive lending laws
applicable to the Mortgage Loan;
(ix) The
related Mortgage is a valid, subsisting, enforceable and perfected first lien
on
the Mortgaged Property, including for Mortgage Loans that are not Cooperative
Loans, all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems affixed
to such buildings, and all additions, alterations and replacements made at
any
time with respect to the foregoing securing the Mortgage Note’s original
principal balance. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right thereto. Such
lien
is free and clear of all adverse claims, liens and encumbrances having priority
over the first lien, as applicable, of the Mortgage subject only to (1) the
lien of non-delinquent current real property taxes and assessments not yet
due
and payable, (2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A) which are referred to or otherwise considered in the appraisal made for
the originator of the Mortgage Loan, or (B) which do not adversely affect
the appraised value of the Mortgaged Property as set forth in such appraisal,
and (3) other matters to which like properties are commonly subject which
do not materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property. Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the Mortgage
Loan establishes and creates a valid, subsisting, enforceable and perfected
first lien and first priority security interest on the property described
therein, and the Seller has the full right to sell and assign the same to the
Depositor;
IIIA-2
(x) The
Mortgage Note and the related Mortgage are original and genuine and each is
the
legal, valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles;
(xi) The
Seller or its affiliate is the sole owner of record and holder of the Mortgage
Loan and the indebtedness evidenced by the Mortgage Note. Immediately prior
to
the transfer and assignment to the Depositor on the Closing Date, the Mortgage
Loan, including the Mortgage Note and the Mortgage, were not subject to an
assignment or pledge, and the Seller had good and marketable title to and was
the sole owner thereof and had full right to transfer and sell the Mortgage
Loan
to the Depositor free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest and has the full right and authority subject
to no interest or participation of, or agreement with, any other party, to
sell
and assign the Mortgage Loan and following the sale of the Mortgage Loan, the
Depositor will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security
interest;
(xii) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such liens) affecting the related Mortgaged Property which are or may be liens
prior to or equal to the lien of the related Mortgage;
(xiii) All
improvements subject to the Mortgage which were considered in determining the
appraised value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) except for de minimus encroachments
permitted by the FNMA Guide and which have been noted on the appraisal or the
title policy affirmatively insures against loss or damage by reason of any
violation, variation or encroachment adverse circumstances which is either
disclosed or would have been disclosed by an accurate survey, and no
improvements on adjoining properties encroach upon the Mortgaged Property except
those which are insured against by the title insurance policy referred to in
clause (xiii) above or are acceptable under FNMA or FHLMC guidelines and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(xiv) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty. At origination of the Mortgage
Loan there was, and there currently is, no proceeding pending for the total
or
partial condemnation of the Mortgaged Property;
(xv) The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, who had no interest, direct or indirect, in the Mortgaged Property
or
in any loan made on the security thereof, and whose compensation is not affected
by the approval or disapproval of the Mortgage Loan;
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(xvi) Each
Mortgage Loan has been serviced in all material respects in compliance with
accepted servicing practices;
(xvii) [Reserved]
(xviii) The
Mortgage Loan complies with all the terms, conditions and requirements of the
originator’s underwriting standards in effect at the time of origination of such
Mortgage Loan.
(xix) The
Seller has delivered or caused to be delivered to the Trustee or the Custodian
on behalf of the Trustee the original Mortgage bearing evidence that such
instruments have been recorded in the appropriate jurisdiction where the
Mortgaged Property is located as determined by the Seller (or, in lieu of the
original of the Mortgage or the assignment thereof, a duplicate or conformed
copy of the Mortgage or the instrument of assignment, if any, together with
a
certificate of receipt from the Seller or the settlement agent who handled
the
closing of the Mortgage Loan, certifying that such copy or copies represent
true
and correct copy(ies) of the originals) and that such original(s) have been
or
are currently submitted to be recorded in the appropriate governmental recording
office of the jurisdiction where the Mortgaged Property is located) or a
certification or receipt of the recording authority evidencing the
same;
(xx) The
Mortgage File contains each of the documents specified in Section 2.01(b) of
this Agreement;
(xxi) [Reserved]
(xxii) With
respect to each Mortgage Loan, (a) the Mortgage Loan was originated by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or similar institution which is supervised and examined by a federal or state
authority or (b) at the time the Mortgage Loan was originated, the originator
was a mortgagee duly licensed as required by the State within which the Mortgage
Loan was originated, and was subject to supervision and examination conducted
by
the applicable State authority of such State;
(xxiii) The
Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A);
(xxiv) With
respect to each Mortgage Loan sold by any Seller, to the knowledge of DLJMC,
(i)
no borrower obtained a prepaid single-premium credit insurance policy in
connection with the origination of a Mortgage Loan, (ii) the related Servicer
of
each such Mortgage Loan has fully furnished, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company, on a monthly basis; and (iii) no such Mortgage
Loan
will impose a Prepayment Penalty for a term in excess of five
years;
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(xxv) With
respect to each Mortgage Loan sold by any Seller that was originated on or
after
October 1, 2002 and before March 7, 2003, no such Mortgage Loan is secured
by a
Mortgaged Property located in the State of Georgia and no Mortgage Loan sold
by
any Seller secured by Mortgaged Property located in the State of Georgia that
was originated on or after March 7, 2003 is a “high cost home loan” as defined
in the Georgia Fair Lending Act (HB 1361), as amended;
(xxvi) [Reserved];
(xxvii)
None of
the Mortgage Loans sold by any Seller are classified as (a) a “high cost
mortgage” loan under the Home Ownership and Equity Protection Act of 1994 or (b)
a “high cost home,” “covered,” “high-cost,” “high-risk home,” or “predatory”
loan under any other applicable state, federal or local law;
(xxviii) With
respect to each Mortgage Loan that has a Prepayment Penalty feature, each such
Prepayment Penalty is enforceable and, at the time such Mortgage Loan was
originated, each Prepayment Penalty complied with applicable federal, state
and
local law, subject to federal preemption where applicable;
(xxix) Each
Mortgage Loan that is secured by residential real property (or a leasehold
interest therein) has a loan-to-value ratio of 100% or less by Cut-Off Date
Principal Balance;
(xxx) No
Mortgage Loan sold by any Seller is a “High Cost Loan” or “Covered Loan”, as
applicable, as such terms are defined in the Standard & Poor’s
LEVELS® Glossary, Appendix E, in effect as of the Closing Date; and
(xxxi) With
respect to any Mortgage Loan originated on or after August 1, 2004, either
(a)
the related Mortgage and the related Mortgage Note does not contain a mandatory
arbitration clause (that is, a clause that requires the related Mortgagor to
submit to arbitration to resolve any dispute arising out of or relating in
any
way to the Mortgage Loan) or (b) the related Mortgage and the related Mortgage
Note contained a mandatory arbitration clause as of the related origination
date
and such clause has or will be waived by the originator or an entity designated
by the Seller in writing no later than sixty (60) days after the related Closing
Date which notice included or will include the following language: “WE ARE
HEREBY NOTIFYING YOU THAT THE MANDATORY ARBITRATION CLAUSE OF YOUR LOAN,
REQUIRING THAT YOU SUBMIT TO ARBITRATION TO RESOLVE ANY DISPUTE ARISING OUT
OF
OR RELATING IN ANY WAY TO YOUR MORTGAGE LOAN, IS IMMEDIATELY NULL AND VOID.
YOU
ARE FREE TO CHOOSE TO EXERCISE ANY OF YOUR RIGHTS OR ENFORCE ANY REMEDIES UNDER
YOUR MORTGAGE LOAN THROUGH THE COURT SYSTEM.” A copy of the written notice
referred to in the immediately preceding sentence, if applicable, shall be
retained in the related Mortgage File.
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