EXHIBIT 4.1
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LONG BEACH SECURITIES CORP.,
Depositor
LONG BEACH MORTGAGE COMPANY,
Master Servicer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2005
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Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates, Series 2005-WL2
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................................... 11
Section 1.01 Defined Terms................................................................ 11
Section 1.02 Accounting................................................................... 82
Section 1.03 Allocation of Certain Interest Shortfalls.................................... 82
Section 1.04 Rights of the NIMS Insurer................................................... 83
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES...................... 84
Section 2.01 Conveyance of Mortgage Loans................................................. 84
Section 2.02 Acceptance of REMIC 1 by the Trustee......................................... 87
Section 2.03 Cure, Repurchase or Substitution of Mortgage Loans by the Seller; Remedies
for Breaches by Depositor or Master Servicer; Remedies for Breaches
Relating to Prepayment Charges............................................... 88
Section 2.04 Representations, Warranties and Covenants of the Master Servicer............. 91
Section 2.05 Representations and Warranties of the Depositor.............................. 94
Section 2.06 Issuance of Certificates..................................................... 96
Section 2.07 Reserved..................................................................... 96
Section 2.08 Conveyance of REMIC Regular Interests and Acceptance of REMICs by the
Trustee; Issuance of Certificates............................................ 96
ARTICLE III ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS.................................. 98
Section 3.01 Master Servicer to Act as Master Servicer.................................... 98
Section 3.02 Sub-Servicing Agreements Between the Master Servicer and Sub-Servicers....... 100
Section 3.03 Successor Sub-Servicers...................................................... 102
Section 3.04 Liability of the Master Servicer............................................. 102
Section 3.05 No Contractual Relationship Between Sub-Servicers and the NIMS Insurer,
the Trustee or Certificateholders............................................ 102
Section 3.06 Assumption or Termination of Sub-Servicing Agreements by Trustee............. 102
Section 3.07 Collection of Certain Mortgage Loan Payments................................. 103
Section 3.08 Sub-Servicing Accounts....................................................... 104
Section 3.09 Collection of Taxes, Assessments and Similar Items; Servicing Accounts....... 104
Section 3.10 Collection Account and Distribution Account.................................. 105
Section 3.11 Withdrawals from the Collection Account and Distribution Account............. 108
Section 3.12 Investment of Funds in the Collection Account and the Distribution Account... 110
Section 3.13 Reserved..................................................................... 111
Section 3.14 Maintenance of Hazard Insurance and Errors and Omissions and Fidelity
Coverage..................................................................... 111
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption Agreements.................... 112
Section 3.16 Realization Upon Defaulted Mortgage Loans.................................... 113
Section 3.17 Trustee to Cooperate; Release of Mortgage Files.............................. 116
Section 3.18 Servicing Compensation....................................................... 117
i
Section 3.19 Reports to the Trustee; Collection Account Statements........................ 118
Section 3.20 Statement as to Compliance................................................... 118
Section 3.21 Independent Public Accountants' Servicing Report............................. 119
Section 3.22 Access to Certain Documentation.............................................. 119
Section 3.23 Title, Management and Disposition of REO Property............................ 119
Section 3.24 Obligations of the Master Servicer in Respect of Prepayment Interest
Shortfalls................................................................... 123
Section 3.25 Obligations of the Master Servicer in Respect of Mortgage Rates and
Monthly Payments............................................................. 123
Section 3.26 Reserve Fund................................................................. 123
Section 3.27 Advance Facility............................................................. 125
Section 3.28 PMI Policy; Claims Under the PMI Policy...................................... 126
Section 3.29 Swap Agreement............................................................... 126
Section 3.30 Cap Agreements............................................................... 127
ARTICLE IV FLOW OF FUNDS........................................................................ 127
Section 4.01 Distributions................................................................ 127
Section 4.02 Preference Claims............................................................ 154
Section 4.03 Statements................................................................... 155
Section 4.04 Remittance Reports; Advances................................................. 159
Section 4.05 Distributions on the REMIC Regular Interests................................. 160
Section 4.06 Allocation of Realized Losses................................................ 164
Section 4.07 Compliance with Withholding Requirements..................................... 169
Section 4.08 Commission Reporting......................................................... 169
Section 4.09 Supplemental Interest Account................................................ 170
Section 4.10 Final Maturity Reserve Account............................................... 171
ARTICLE V THE CERTIFICATES...................................................................... 171
Section 5.01 The Certificates............................................................. 171
Section 5.02 Registration of Transfer and Exchange of Certificates........................ 173
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............................ 178
Section 5.04 Persons Deemed Owners........................................................ 178
ARTICLE VI THE MASTER SERVICER AND THE DEPOSITOR................................................ 179
Section 6.01 Liability of the Master Servicer and the Depositor........................... 179
Section 6.02 Merger or Consolidation of the Depositor or the Master Servicer.............. 179
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer and Others..... 179
Section 6.04 Limitation on Resignation of Master Servicer................................. 181
Section 6.05 Rights of the Depositor, the NIMS Insurer and the Trustee in Respect of
the Master Servicer.......................................................... 181
ARTICLE VII DEFAULT............................................................................. 182
Section 7.01 Master Servicer Events of Default............................................ 182
Section 7.02 Trustee to Act; Appointment of Successor..................................... 184
Section 7.03 Notification to Certificateholders........................................... 186
ii
Section 7.04 Waiver of Master Servicer Events of Default.................................. 186
ARTICLE VIII THE TRUSTEE........................................................................ 187
Section 8.01 Duties of Trustee............................................................ 187
Section 8.02 Certain Matters Affecting the Trustee........................................ 188
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans........................ 189
Section 8.04 Trustee May Own Certificates................................................. 190
Section 8.05 Trustee's Fees and Expenses.................................................. 190
Section 8.06 Eligibility Requirements for Trustee......................................... 191
Section 8.07 Resignation or Removal of Trustee............................................ 191
Section 8.08 Successor Trustee............................................................ 192
Section 8.09 Merger or Consolidation of Trustee........................................... 193
Section 8.10 Appointment of Co-Trustee or Separate Trustee................................ 193
Section 8.11 Appointment of Custodians.................................................... 194
Section 8.12 Appointment of Office or Agency.............................................. 194
Section 8.13 Representations and Warranties of the Trustee................................ 195
ARTICLE IX TERMINATION.......................................................................... 195
Section 9.01 Termination Upon Purchase or Liquidation of All Mortgage Loans............... 195
Section 9.02 Additional Termination Requirements.......................................... 198
ARTICLE X REMIC PROVISIONS...................................................................... 199
Section 10.01 REMIC Administration......................................................... 199
Section 10.02 Prohibited Transactions and Activities....................................... 203
Section 10.03 Trustee, Master Servicer and Depositor Indemnification....................... 203
ARTICLE XI MISCELLANEOUS PROVISIONS............................................................. 204
Section 11.01 Amendment.................................................................... 204
Section 11.02 Recordation of Agreement; Counterparts....................................... 205
Section 11.03 Limitation on Rights of Certificateholders................................... 206
Section 11.04 Governing Law; Jurisdiction.................................................. 207
Section 11.05 Notices...................................................................... 207
Section 11.06 Severability of Provisions................................................... 207
Section 11.07 Notice to the Rating Agencies, the Cap Provider, the Swap Counterparty
and the NIMS Insurer......................................................... 207
Section 11.08 Article and Section References............................................... 208
Section 11.09 Third-Party Beneficiaries.................................................... 209
Section 11.10 Grant of Security Interest................................................... 209
iii
Exhibits
Exhibit A-1 Form of Class I-A1 Certificates
Exhibit A-2 Form of Class I-A2 Certificates
Exhibit A-3 Form of Class II-A1 Certificates
Exhibit A-4 Form of Class II-A2 Certificates
Exhibit A-5 Form of Class III-A1 Certificates
Exhibit A-6 Form of Class III-A1A Certificates
Exhibit A-7 Form of Class III-A2 Certificates
Exhibit A-8 Form of Class III-A3 Certificates
Exhibit A-9 Form of Class III-A4 Certificates
Exhibit A-10 Form of Class M-1 Certificates
Exhibit A-11 Form of Class M-2 Certificates
Exhibit A-12 Form of Class M-3 Certificates
Exhibit A-13 Form of Class M-4 Certificates
Exhibit A-14 Form of Class M-5 Certificates
Exhibit A-15 Form of Class M-6 Certificates
Exhibit A-16 Form of Class M-7 Certificates
Exhibit A-17 Form of Class M-8 Certificates
Exhibit A-18 Form of Class M-9 Certificates
Exhibit A-19 Form of Class M-10 Certificates
Exhibit A-20 Form of Class B-1 Certificates
Exhibit A-21 Form of Class B-2 Certificates
Exhibit A-22 Form of Class B-3 Certificates
Exhibit A-23 Form of Class C Certificates
Exhibit A-24 Form of Class P Certificates
Exhibit A-25 Form of Class R Certificates
Exhibit A-26 Form of Class R-CX Certificates
Exhibit A-27 Form of Class R-PX Certificates
Exhibit B-1 Form of Group I Senior Cap Agreement
Exhibit B-2 Form of Group II Senior Cap Agreement
Exhibit B-3 Form of Group III Senior Cap Agreement
Exhibit B-4 Form of Subordinate Cap Agreement
Exhibit C Form of Mortgage Loan Purchase Agreement
Exhibit D Mortgage Loan Schedule
Exhibit E-1 Request for Release (for Trustee/Custodian)
Exhibit E-2 Request for Release (Certificate - Mortgage Loan Paid in Full)
Exhibit E-3 Form of Mortgage Loan Assignment Agreement
Exhibit F-1 Form of Trustee's Initial Certification
Exhibit F-2 Form of Trustee's Final Certification
Exhibit G Form of Swap Agreement
Exhibit H Form of Lost Note Affidavit
Exhibit I Form of ERISA Representation
Exhibit J-1A Form of Class B Certificate Transferor Certificate
Exhibit J-1B Form of Class B Certificate Transferee Certificate
Exhibit J-2 Form of Investment Letter
Exhibit K Form of Class R Certificate, Class R-CX Certificate and
Class R-PX Certificate Transfer Affidavit
iv
Exhibit L Form of Transferor Certificate
Exhibit M Form of Officer's Certificate re Waiver of Prepayment Charges
Schedules
Schedule I Prepayment Charge Schedule
Schedule II Cap Premium Schedule
Schedule III Reserved
Schedule IV PMI Mortgage Loan Schedule (Not applicable)
v
This POOLING AND SERVICING AGREEMENT is dated as of August 1, 2005 (the
"Agreement"), among LONG BEACH SECURITIES CORP., as depositor (the "Depositor"),
LONG BEACH MORTGAGE COMPANY, as master servicer (the "Master Servicer") and
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates (collectively, the
"Certificates"), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of twenty-seven classes of
certificates, designated as (i) the Class I-A1 Certificates, (ii) the Class I-A2
Certificates, (iii) the Class II-A1 Certificates, (iv) the Class II-A2
Certificates, (v) the Class III-A1 Certificates, (vi) the Class III-A1A
Certificates, (vii) the Class III-A2 Certificates, (viii) the Class III-A3
Certificates, (ix) the Class III-A4 Certificates, (x) the Class M-1
Certificates, (xi) the Class M-2 Certificates, (xii) the Class M-3 Certificates,
(xiii) the Class M-4 Certificates, (xiv) the Class M-5 Certificates, (xv) the
Class M-6 Certificates, (xvi) the Class M-7 Certificates, (xvii) the Class M-8
Certificates, (xviii) the Class M-9 Certificates, (xix) the Class M-10
Certificates, (xx) the Class B-1 Certificates, (xxi) the Class B-2 Certificates,
(xxii) the Class B-3 Certificates, (xxiii) the Class C Certificates, (xiv) the
Class P Certificates, (xv) the Class R Certificates, (xvi) the Class R-CX
Certificates and (xvii) the Class R-PX Certificates.
1
REMIC 1
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement (exclusive of the Reserve Fund, the
Supplemental Interest Account, the Final Maturity Reserve Account and the Master
Servicer Prepayment Charge Payment Amounts) as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC 1."
The Class R-1 Interest shall represent the sole class of "residual interests" in
REMIC 1 for purposes of the REMIC Provisions (as defined herein) under federal
income tax law. The following table irrevocably sets forth the designation, the
Uncertificated REMIC 1 Pass-Through Rate, the initial Uncertificated Principal
Balance, and solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC 1
Regular Interests. None of the REMIC 1 Regular Interests will be certificated.
Initial Uncertificated
Uncertificated REMIC 1A Rate Change Assumed Final
Designation Principal Balance Pass-Through Rate Date Maturity Date(1)
----------- ----------------- ----------------- ----------- ----------------
A $2,480,144,901.49 Variable(2) N/A August, 2045
G1-A $ 35,074,510.00 Xxxxxxxx(0) X/X Xxxxxx, 0000
X0-X $ 10,212,116.83 Xxxxxxxx(0) X/X Xxxxxx, 0000
X0-X $ 67,654,800.00 Xxxxxxxx(0) X/X Xxxxxx, 0000
X0-X $ 19,698,066.96 Xxxxxxxx(0) X/X Xxxxxx, 0000
X0-X $ 110,701,000.00 Xxxxxxxx(0) X/X Xxxxxx, 0000
X0-X $ 32,231,173.04 Variable(2) N/A August, 2045
P $ 100.00 Variable(2) N/A August, 2045
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity date for
the Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each REMIC 1 Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 1
Pass-Through Rate" herein.
2
REMIC 2
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the REMIC 1 Regular Interests and
certain other related assets subject to this Agreement (exclusive of the Reserve
Fund, the Supplemental Interest Account, the Final Maturity Reserve Account and
the Master Servicer Prepayment Charge Payment Amounts) as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC 2." The Class R-2 Interest shall represent the sole class of "residual
interests" in REMIC 2 for purposes of the REMIC Provisions (as defined herein)
under federal income tax law. The following table irrevocably sets forth the
designation, the Uncertificated REMIC 2 Pass-Through Rate, the initial
Uncertificated Principal Balance, and solely for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC 2 Regular Interests. None of the REMIC 2 Regular Interests
will be certificated.
Uncertificated
REMIC 2
Initial Uncertificated Pass-Through Assumed Final
Designation Principal Balance Rate Maturity Date(1)
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A $2,480,144,901.49 Variable(2) August, 2045
G1-SR $ 35,074,510.00 Variable(2) August, 2045
G2-SR $ 67,654,800.00 Variable(2) August, 2045
G3-SR $ 110,701,000.00 Variable(2) August, 2045
SUB-A $ 29,641,356.83 Variable(2) August, 2045
Swap $ 32,500,000.00 Variable(2) August, 2045
FMR IO N/A(3) Variable(2) August, 2045
P $ 100.00 Variable(2) August, 2045
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the month of the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC 2 Regular
Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 2
Pass-Through Rate" herein.
(3) REMIC 2 Regular Interest FMR IO will not have a principal amount but
will at all times have a notional amount equal to the principal amount of all of
the REMIC 1 Regular Interests.
3
REMIC 3
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the REMIC 2 Regular Interests and
certain other related assets subject to this Agreement (exclusive of the Reserve
Fund, the Supplemental Interest Account, the Final Maturity Reserve Account and
the Master Servicer Prepayment Charge Payment Amounts) as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC 3." The Class R-3 Interest shall represent the sole class of "residual
interests" in REMIC 3 for purposes of the REMIC Provisions (as defined herein)
under federal income tax law. The following table irrevocably sets forth the
designation, the Uncertificated REMIC 3 Pass-Through Rate, the initial
Uncertificated Principal Balance, and solely for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC 3 Regular Interests. None of the REMIC 3 Regular Interests
will be certificated.
Uncertificated
REMIC 1
Initial Uncertificated Pass-Through Assumed Final
Designation Principal Balance Rate Maturity Date(1)
----------- ---------------------- -------------- ----------------
AA $1,350,301,118.48 Variable(2) August, 2045
IA1 $ 1,402,980.00 Variable(2) August, 2045
IA2 $ 350,745.00 Variable(2) August, 2045
IIA1 $ 2,706,190.00 Variable(2) August, 2045
IIA2 $ 676,550.00 Variable(2) August, 2045
IIIA1 $ 1,625,000.00 Variable(2) August, 2045
IIIA1A $ 239,015.00 Variable(2) August, 2045
IIIA2 $ 2,011,675.00 Variable(2) August, 2045
IIIA3 $ 1,518,490.00 Variable(2) August, 2045
IIIA4 $ 140,870.00 Variable(2) August, 2045
M1 $ 723,375.00 Variable(2) August, 2045
M2 $ 420,245.00 Variable(2) August, 2045
M3 $ 275,570.00 Variable(2) August, 2045
M4 $ 206,680.00 Variable(2) August, 2045
M5 $ 206,680.00 Variable(2) August, 2045
M6 $ 186,010.00 Variable(2) August, 2045
M7 $ 172,230.00 Variable(2) August, 2045
M8 $ 144,675.00 Variable(2) August, 2045
M9 $ 137,785.00 Variable(2) August, 2045
M10 $ 110,230.00 Variable(2) August, 2045
B1 $ 137,785.00 Variable(2) August, 2045
B2 $ 144,675.00 Variable(2) August, 2045
B3 $ 130,895.00 Variable(2) August, 2045
ZZ $ 13,888,815.68 Variable(2) August, 2045
1GRP $ 3,507,451.00 Variable(2) August, 2045
2GRP $ 6,765,480.00 Variable(2) August, 2045
3GRP $ 11,070,100.00 Variable(2) August, 2045
SUB GRP $ 6,214,135.68 Variable(2) August, 2045
Swap IO N/A(3) Variable(2) August, 2045
FMR IO N/A(4) Variable(2) August, 2045
XX $1,350,301,117.48 Variable(2) August, 2045
P $ 100.00 Variable(2) August, 2045
4
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the month of the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC 3 Regular
Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 3
Pass-Through Rate" herein.
(3) REMIC 3 Regular Interest Swap IO will not have a principal amount but
will at all times have a notional amount equal to the principal amount of REMIC
2 Regular Interest Swap.
(4) REMIC 3 Regular Interest FMR IO will not have a principal amount but
will at all times have a notional amount equal to the principal amount of all of
the REMIC 2 Regular Interests.
5
REMIC 4
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the REMIC 3 Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC 4." The Class R-4 Interest represents the sole class of
"residual interests" in REMIC 4 for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and Original Class Certificate Principal Balance for each
Class of Certificates that represents one or more of the "regular interests" in
REMIC 4 and each class of uncertificated "regular interests" in REMIC 4:
Original Class
Certificate Principal Pass-Through Assumed Final
Class Designation Balance Rate Maturity Date(1)
-----------------------------------------------------------------------------
I-A1 $280,596,000.00 Variable(2) August, 2045
I-A2 $ 70,149,000.00 Variable(2) August, 2045
II-A1 $541,238,000.00 Variable(2) August, 2045
II-A2 $135,310,000.00 Variable(2) August, 2045
III-A1 $325,000,000.00 Variable(2) August, 2045
III-A1A $ 47,803,000.00 Variable(2) August, 2045
III-A2 $402,335,000.00 Variable(2) August, 2045
III-A3 $303,698,000.00 Variable(2) August, 2045
III-A4 $ 28,174,000.00 Variable(2) August, 2045
M-1 $144,675,000.00 Variable(2) August, 2045
M-2 $ 84,049,000.00 Variable(2) August, 2045
M-3 $ 55,114,000.00 Variable(2) August, 2045
M-4 $ 41,336,000.00 Variable(2) August, 2045
M-5 $ 41,336,000.00 Variable(2) August, 2045
M-6 $ 37,202,000.00 Variable(2) August, 2045
M-7 $ 34,446,000.00 Variable(2) August, 2045
M-8 $ 28,935,000.00 Variable(2) August, 2045
M-9 $ 27,557,000.00 Variable(2) August, 2045
M-10 $ 22,046,000.00 Variable(2) August, 2045
B-1 $ 27,557,000.00 Variable(2) August, 2045
B-2 $ 28,935,000.00 Variable(2) August, 2045
B-3 $ 26,179,000.00 Variable(2) August, 2045
Swap IO N/A(5) Variable(5) August, 0000
XX Xxxxxxx IO N/A(5) Variable(5) August, 2045
Class C Interest(3) $ 22,046,568.32 Variable(2) August, 2045
Class P Interest $ 100.00 N/A(4) August, 2045
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the month of the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each Class of Certificates
or uncertificated interests that represents one or more of the "regular
interests" in REMIC 4.
(2) Calculated in accordance with the definition of "Pass-Through Rate"
herein.
(3) The Class C Interest will accrue interest at its variable Pass-Through
Rate on its Notional Amount outstanding from time to time, which shall equal the
aggregate of the Uncertificated Principal Balances of the REMIC 3 Regular
Interests. The Class C Interest will not accrue interest on its Uncertificated
Principal Balance.
(4) The Class P Interest will not accrue interest.
6
(5) The interests designated "Swap IO", "Cap IO", and "FM Reserve IO" will
not have principal amounts but will bear interest on notional amounts as
specified in the definition of "Notional Amount", below. The interest rates are
calculated in accordance with Uncertificated REMIC 4 Pass-Through Rate" herein.
These interests will not be certificated. For federal income tax purposes, the
Swap IO Class will be entitled to 100% of the interest paid on REMIC 3 Regular
Interest Swap; and the FM Reserve IO interest will be entitled to 100% of the
interest paid on REMIC 3 Regular Interest FMR IO.
7
REMIC CX
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class C Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC CX." The Class R-CX Interest will represent the sole class
of "residual interests" in REMIC CX for purposes of the REMIC Provisions (as
defined herein) under federal income tax law. The following table irrevocably
sets forth the designation, the Pass-Through Rate, initial Uncertificated
Principal Balance, and solely for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the
REMIC CX Regular Interests.
Uncertificated REMIC CX Initial Uncertificated Assumed Final
Designation Pass-Through Rate Principal Balance Maturity Date(1)
----------- ----------------------- ---------------------- ---------------
Class C Variable(2) $22,046,568.32 August 2045
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the month of the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC CX Regular
Interest.
(2) The Class C Certificates will not accrue interest on their Certificate
Principal Balance. Instead, the monthly interest due on the Class C Certificates
will be 100% of the interest paid on the Class C Interest.
8
REMIC PX
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class P Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC PX." The Class R-PX Interest shall represent the sole class
of "residual interests" in REMIC PX for purposes of the REMIC Provisions (as
defined herein) under federal income tax law. The following table irrevocably
sets forth the designation, the Pass-Through Rate, initial Uncertificated
Principal Balance, and solely for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the
REMIC PX Regular Interests.
Uncertificated REMIC PX Initial Uncertificated Assumed Final
Designation Pass-Through Rate Principal Balance Maturity Date(1)
----------- ----------------------- ---------------------- ---------------
Class P N/A(2) $100.00 August 2045
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the month of the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC PX Regular
Interest.
(2) The Class P Certificates will not accrue interest.
9
REMIC SwapX
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class P Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC SwapX." The Class R-SwapX Interest shall represent the sole
class of "residual interests" in REMIC SwapX for purposes of the REMIC
Provisions (as defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, the Pass-Through Rate, initial
Uncertificated Principal Balance, and solely for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC SwapX Regular Interests.
Uncertificated REMIC PX Initial Uncertificated Assumed Final
Designation Pass-Through Rate Principal Balance Maturity Date(1)
------------- ----------------------- ---------------------- ----------------
Class Swap IO N/A(2) $0.00 August 2045
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the month of the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC SwapX Regular
Interest.
(2) The Class Swap IO Certificate will not accrue interest on its
Certificate Principal Balance. Instead, the monthly interest due on the Class
Swap IO Certificates will be 100% of the interest paid on the Class Swap IO
Interest.
10
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement or in the Preliminary Statement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article. Unless otherwise specified, all
calculations in respect of interest on the Class A Certificates, the Mezzanine
Certificates and the Class B Certificates shall be made on the basis of the
actual number of days elapsed on the basis of a 360-day year and all other
calculations of interest described herein shall be made on the basis of a
360-day year consisting of twelve 30-day months. The Class P Certificates and
the Residual Certificates are not entitled to distributions in respect of
interest and, accordingly, will not accrue interest.
"1933 Act": The Securities Act of 1933, as amended.
"Account": Either of the Collection Account and Distribution Account.
"Accrual Period": With respect to the Class C Certificates, the REMIC 1
Regular Interests, REMIC 2 Regular Interests, REMIC 3 Regular Interests, REMIC 4
Regular Interests and the Class C Interest, and each Distribution Date, the
calendar month prior to the month of such Distribution Date. With respect to the
Class A Certificates, the Mezzanine Certificates and the Class B Certificates,
and each Distribution Date, the period commencing on the immediately preceding
Distribution Date (or in the case of the first such Accrual Period, commencing
on the Closing Date) and ending on the day immediately preceding such
Distribution Date.
"Additional Termination Event": As defined in the Swap Agreement.
"Adjustable Rate Mortgage Loan": A Mortgage Loan which provides for an
adjustable Mortgage Rate payable with respect thereto.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property), as of any Distribution Date, a per annum rate of interest
equal to the Mortgage Rate for such Mortgage Loan as of the first day of the
month preceding the month in which such Distribution Date occurs, minus the sum
of (i) the Servicing Fee Rate, (ii) the PMI Insurer Fee Rate, if applicable, and
(iii) the Trustee Fee Rate.
"Adjustment Date": With respect to each Adjustable Rate Mortgage Loan, each
date, on which the Mortgage Rate of such Mortgage Loan changes pursuant to the
related Mortgage Note. The first Adjustment Date following the Cut-off Date as
to each Adjustable Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
"Advance": As to any Mortgage Loan or REO Property, any advance made by the
Master Servicer in respect of any Distribution Date pursuant to Section 4.04.
"Advancing Person": As defined in Section 3.27 hereof.
"Adverse REMIC Event": As defined in Section 10.01(f) hereof.
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"Affiliate": With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise and "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Aggregate Final Maturity Reserve Amount": With respect any Distribution
Date, the sum of the Group I Final Maturity Reserve Amount, the Group II Final
Maturity Reserve Amount and the Group III Final Maturity Reserve Amount.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Allocated Realized Loss Amount": With respect to any Distribution Date and
any Class of the Class I-A2 Certificates, the Class II-A2 Certificates, the
Class III-A1A Certificates, the Mezzanine Certificates and the Class B
Certificates, an amount equal to (a) the sum of (i) any Realized Losses
allocated to such Class of Certificates on such Distribution Date and (ii) any
Allocated Realized Loss Amount for such Class of Certificates remaining unpaid
from the previous Distribution Date less (b) any Allocated Realized Loss Amounts
that have been reinstated with respect to such Class of Certificates on prior
Distribution Dates due to Subsequent Recoveries.
"Appraised Value": With respect to any Mortgaged Property, the value
thereof as determined by an appraisal made for the originator of the related
Mortgage Loan at the time of origination of such Mortgage Loan by an appraiser
who met the minimum requirements of Xxxxxx Xxx.
"Assignment": An assignment of Mortgage, notice of transfer or equivalent
instrument, in recordable form (excepting therefrom, if applicable, the mortgage
recordation information which has not been required pursuant to Section 2.01
hereof or returned by the applicable recorder's office), which is sufficient
under the laws of the jurisdiction in which the related Mortgaged Property is
located to reflect of record the sale of the Mortgage.
"Available Funds": With respect to any Distribution Date, an amount
equal to the excess of (i) the sum of (a) the aggregate of the Monthly Payments
on the Mortgage Loans due on the related Due Date and received on or prior to
the related Determination Date, (b) Liquidation Proceeds, Insurance Proceeds,
Principal Prepayments, Gross Subsequent Recoveries and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans during the
related Prepayment Period (other than any Prepayment Charges collected by the
Master Servicer in connection with the full or partial prepayment of any of the
Mortgage Loans, any Master Servicer Prepayment Charge Payment Amount in
connection with the Mortgage Loans and any Prepayment Interest Excess), (c) the
aggregate of any amounts received in respect of an REO Property acquired in
respect of a Mortgage Loan withdrawn from any REO Account and deposited in the
Collection Account for such Distribution Date, (d) the aggregate of any amounts
deposited in the Collection Account by the Master Servicer in respect of related
Prepayment Interest Shortfalls on the Mortgage Loans for such Distribution Date,
(e) the aggregate of any Advances made by the Master Servicer or the Trustee for
such Distribution Date with respect to the Mortgage Loans, (f) the aggregate of
any related advances made by or on behalf of the
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Trustee for such Distribution Date with respect to the Mortgage Loans pursuant
to Section 7.02(b) and (g) the aggregate of any amounts constituting proceeds of
repurchases or substitutions of the Mortgage Loans occurring during the related
Prepayment Period over (ii) the sum, without duplication, of (a) amounts
reimbursable or payable to the Depositor, the Master Servicer, the Trustee, the
Seller, the NIMS Insurer or any Sub-Servicer pursuant to Section 3.11 or Section
3.12 in respect of the Mortgage Loans or otherwise payable in respect of
Extraordinary Trust Fund Expenses, (b) amounts deposited in the Collection
Account or the Distribution Account pursuant to clauses (i)(a) through (g)
above, as the case may be, in error, (c) Stayed Funds, (d) any Trustee Fee
pursuant to Section 8.05 and any indemnification payments or expense
reimbursements made by the Trust Fund pursuant to Section 8.05, (e) the PMI
Insurer Fee payable from the Distribution Account and (f) amounts reimbursable
to the Trustee for an advance made pursuant to Section 7.02(b) which advance the
Trustee has determined to be nonrecoverable from the Stayed Funds in respect of
which it was made.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a Realized Loss
resulting from a Deficient Valuation or Debt Service Reduction.
"Book-Entry Certificates": Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a "Depository Participant," or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.02 hereof). On the Closing Date, the
Class A Certificates, the Mezzanine Certificates and the Class B Certificates
shall be Book-Entry Certificates.
"Book-Entry Custodian": The custodian appointed pursuant to Section
5.01(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking or savings institutions in the State of California, the State of
Delaware, the State of New York, the State of Washington, or in the city in
which the Corporate Trust Office of the Trustee is located, are authorized or
obligated by law or executive order to be closed.
"Calculation Period": As such term is defined in the Swap Agreement.
"Cap Agreements": The Group I Senior Cap Agreement, the Group II Senior Cap
Agreement, the Group III Senior Cap Agreement and the Subordinate Cap Agreement.
"Cap Provider": Credit Suisse First Boston International.
"Certificate": Any Regular Certificate or Residual Certificate.
"Certificate Margin": With respect to the Class I-A1 Certificates on each
Distribution Date (A) on or prior to the Optional Termination Date, 0.26% per
annum and (B) after the Optional Termination Date, 0.52% per annum. With respect
to the Class I-A2 Certificates on each Distribution Date (A) on or prior to the
Optional Termination Date, 0.30% per annum and
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(B) after the Optional Termination Date, 0.60% per annum. With respect to the
Class II-A1 Certificates on each Distribution Date (A) on or prior to the
Optional Termination Date, 0.25% per annum and (B) after the Optional
Termination Date, 0.50% per annum. With respect to the Class II-A2 Certificates
on each Distribution Date (A) on or prior to the Optional Termination Date,
0.31% per annum and (B) after the Optional Termination Date, 0.62% per annum.
With respect to the Class III-A1 Certificates on each Distribution Date (A) on
or prior to the Optional Termination Date, 0.18% per annum and (B) after the
Optional Termination Date, 0.36% per annum. With respect to the Class III-A1A
Certificates on each Distribution Date (A) on or prior to the Optional
Termination Date, 0.32% per annum and (B) after the Optional Termination Date,
0.64% per annum. With respect to the Class III-A2 Certificates on each
Distribution Date (A) on or prior to the Optional Termination Date, 0.11% per
annum and (B) after the Optional Termination Date, 0.22% per annum. With respect
to the Class III-A3 Certificates on each Distribution Date (A) on or prior to
the Optional Termination Date, 0.27% per annum and (B) after the Optional
Termination Date, 0.54% per annum. With respect to the Class III-A4 Certificates
on each Distribution Date (A) on or prior to the Optional Termination Date,
0.37% per annum and (B) after the Optional Termination Date, 0.74% per annum.
With respect to the Class M-1 Certificates on each Distribution Date (A) on or
prior to the Optional Termination Date, 0.47% per annum and (B) after the
Optional Termination Date, 0.705% per annum. With respect to the Class M-2
Certificates on each Distribution Date (A) on or prior to the Optional
Termination Date, 0.49% per annum and (B) after the Optional Termination Date,
0.735% per annum. With respect to the Class M-3 Certificates on each
Distribution Date (A) on or prior to the Optional Termination Date, 0.52% per
annum and (B) after the Optional Termination Date, 0.78% per annum. With respect
to the Class M-4 Certificates on each Distribution Date (A) on or prior to the
Optional Termination Date, 0.61% per annum and (B) after the Optional
Termination Date, 0.915% per annum. With respect to the Class M-5 Certificates
on each Distribution Date (A) on or prior to the Optional Termination Date,
0.64% per annum and (B) after the Optional Termination Date, 0.96% per annum.
With respect to the Class M-6 Certificates on each Distribution Date (A) on or
prior to the Optional Termination Date, 0.72% per annum and (B) after the
Optional Termination Date, 1.08% per annum. With respect to the Class M-7
Certificates on each Distribution Date (A) on or prior to the Optional
Termination Date, 1.20% per annum and (B) after the Optional Termination Date,
1.80% per annum. With respect to the Class M-8 Certificates on each Distribution
Date (A) on or prior to the Optional Termination Date, 1.40% per annum and (B)
after the Optional Termination Date, 2.10% per annum. With respect to the Class
M-9 Certificates on each Distribution Date (A) on or prior to the Optional
Termination Date, 1.80% per annum and (B) after the Optional Termination Date,
2.70% per annum. With respect to the Class M-10 Certificates on each
Distribution Date (A) on or prior to the Optional Termination Date, 2.50% per
annum and (B) after the Optional Termination Date, 3.75% per annum. With respect
to the Class B-1 Certificates on each Distribution Date (A) on or prior to the
Optional Termination Date, 2.50% per annum and (B) after the Optional
Termination Date, 3.75% per annum. With respect to the Class B-2 Certificates on
each Distribution Date (A) on or prior to the Optional Termination Date, 2.00%
per annum and (B) after the Optional Termination Date, 3.00% per annum. With
respect to the Class B-3 Certificates on each Distribution Date (A) on or prior
to the Optional Termination Date, 2.50% per annum and (B) after the Optional
Termination Date, 3.75% per annum.
"Certificate Owner": With respect to each Book-Entry Certificate, any
beneficial owner thereof.
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"Certificate Principal Balance": With respect to any Class A Certificates,
Mezzanine Certificates, Class B Certificates or Class P Certificates immediately
prior to any Distribution Date, an amount equal to the Initial Certificate
Principal Balance thereof reduced by the sum of all amounts actually distributed
in respect of principal of such Class and, in the case of a Class I-A2
Certificate, Class II-A2 Certificate and Class III-A1A Certificate, Mezzanine
Certificate or Class B Certificate, Realized Losses allocated thereto on all
prior Distribution Dates and, in the case of a Class I-A2 Certificate, Class
II-A2 Certificate and Class III-A1A Certificate, Mezzanine Certificate or Class
B Certificate, increased by the Allocated Realized Loss Amounts reinstated
thereto on all prior Distribution Dates due to Subsequent Recoveries. With
respect to any Class C Certificates as of any date of determination, an amount
equal to the Uncertificated Principal Balance of the Class C Interest. The
Residual Certificates will not have a Certificate Principal Balance.
"Certificate Register": The register established and maintained pursuant to
Section 5.02 hereof.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, except that a Disqualified Organization
or a Non-United States Person shall not be a Holder of a Residual Certificate
for any purposes hereof and, solely for the purposes of giving any consent,
direction or taking any other action pursuant to this Agreement, any Certificate
registered in the name of the Depositor or the Master Servicer or any Affiliate
thereof shall be deemed not to be outstanding and the Voting Rights to which it
is entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, direction or
other action has been obtained, except as otherwise provided in Section 11.01.
The Trustee and the NIMS Insurer may conclusively rely upon a certificate of the
Depositor or the Master Servicer in determining whether a Certificate is held by
an Affiliate thereof. All references herein to "Holders" or "Certificateholders"
shall reflect the rights of Certificate Owners as they may indirectly exercise
such rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trustee and the NIMS
Insurer shall be required to recognize as a "Holder" or "Certificateholder" only
the Person in whose name a Certificate is registered in the Certificate
Register.
"Class": Collectively, Certificates which have the same priority of payment
and bear the same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced thereby.
"Class I-A1 Certificate": Any one of the Class I-A1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-1 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class I-A2 Certificate": Any one of the Class I-A2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-2 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
15
"Class II-A1 Certificate": Any one of the Class II-A1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-3 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class II-A2 Certificate": Any one of the Class II-A2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-4 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class III-A1 Certificate": Any one of the Class III-A1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-5 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class III-A1 LIBOR": With respect to any Distribution Date, is the rate
for deposits in U.S. dollars for a period of one-month that is calculated under
the Swap Agreement for the related Swap Payment Date calculated in accordance
with USD-LIBOR-BBA.
"Class III-A1A Certificate": Any one of the Class III-A1A Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-6 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class III-A2 Certificate": Any one of the Class III-A2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-7 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class III-A3 Certificate": Any one of the Class III-A3 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-8 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class III-A4 Certificate": Any one of the Class III-A4 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-9 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class A Certificates": The Group I Senior Certificates, the Group II
Senior Certificates and the Group III Senior Certificates.
"Class A Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the sum of the Group I Senior Principal Distribution Amount, the Group
II Senior Principal Distribution Amount and the Group III Senior Principal
Distribution Amount.
16
"Class B Certificates": The Class B-1 Certificates, the Class B-2
Certificates and the Class B-3 Certificates.
"Class B-1 Certificate": Any one of the Class B-1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-20, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class B-1 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class B-1 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the aggregate Certificate Principal Balance of the
Class M-5 Certificates (after taking into account the payment of the Class M-5
Principal Distribution Amount on such Distribution Date), (vii) the aggregate
Certificate Principal Balance of the Class M-6 Certificates (after taking into
account the payment of the Class M-6 Principal Distribution Amount on such
Distribution Date), (viii) the aggregate Certificate Principal Balance of the
Class M-7 Certificates (after taking into account the payment of the Class M-7
Principal Distribution Amount on such Distribution Date), (ix) the aggregate
Certificate Principal Balance of the Class M-8 Certificates (after taking into
account the payment of the Class M-8 Principal Distribution Amount on such
Distribution Date), (x) the aggregate Certificate Principal Balance of the Class
M-9 Certificates (after taking into account the payment of the Class M-9
Principal Distribution Amount on such Distribution Date), (xi) the aggregate
Certificate Principal Balance of the Class M-10 Certificates (after taking into
account the payment of the Class M-10 Principal Distribution Amount on such
Distribution Date) and (xii) the aggregate Certificate Principal Balance of the
Class B-1 Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) 94.40% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
"Class B-2 Certificate": Any one of the Class B-2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-21, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
17
"Class B-2 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class B-2 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the aggregate Certificate Principal Balance of the
Class M-5 Certificates (after taking into account the payment of the Class M-5
Principal Distribution Amount on such Distribution Date), (vii) the aggregate
Certificate Principal Balance of the Class M-6 Certificates (after taking into
account the payment of the Class M-6 Principal Distribution Amount on such
Distribution Date), (viii) the aggregate Certificate Principal Balance of the
Class M-7 Certificates (after taking into account the payment of the Class M-7
Principal Distribution Amount on such Distribution Date), (ix) the aggregate
Certificate Principal Balance of the Class M-8 Certificates (after taking into
account the payment of the Class M-8 Principal Distribution Amount on such
Distribution Date), (x) the aggregate Certificate Principal Balance of the Class
M-9 Certificates (after taking into account the payment of the Class M-9
Principal Distribution Amount on such Distribution Date), (xi) the aggregate
Certificate Principal Balance of the Class M-10 Certificates (after taking into
account the payment of the Class M-10 Principal Distribution Amount on such
Distribution Date), (xii) the aggregate Certificate Principal Balance of the
Class B-1 Certificates (after taking into account the payment of the Class B-1
Principal Distribution Amount on such Distribution Date) and (xiii) the
aggregate Certificate Principal Balance of the Class B-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 96.50% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
"Class B-3 Certificate": Any one of the Class B-3 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-22, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class B-3 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class B-3 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class
18
A Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Class M-1 Certificates (after taking into
account the payment of the Class M-1 Principal Distribution Amount on such
Distribution Date), (iii) the aggregate Certificate Principal Balance of the
Class M-2 Certificates (after taking into account the payment of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the aggregate
Certificate Principal Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on such
Distribution Date), (v) the aggregate Certificate Principal Balance of the Class
M-4 Certificates (after taking into account the payment of the Class M-4
Principal Distribution Amount on such Distribution Date), (vi) the aggregate
Certificate Principal Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date), (vii) the aggregate Certificate Principal Balance of the
Class M-6 Certificates (after taking into account the payment of the Class M-6
Principal Distribution Amount on such Distribution Date), (viii) the aggregate
Certificate Principal Balance of the Class M-7 Certificates (after taking into
account the payment of the Class M-7 Principal Distribution Amount on such
Distribution Date), (ix) the aggregate Certificate Principal Balance of the
Class M-8 Certificates (after taking into account the payment of the Class M-8
Principal Distribution Amount on such Distribution Date), (x) the aggregate
Certificate Principal Balance of the Class M-9 Certificates (after taking into
account the payment of the Class M-9 Principal Distribution Amount on such
Distribution Date), (xi) the aggregate Certificate Principal Balance of the
Class M-10 Certificates (after taking into account the payment of the Class M-10
Principal Distribution Amount on such Distribution Date), (xii) the aggregate
Certificate Principal Balance of the Class B-1 Certificates (after taking into
account the payment of the Class B-1 Principal Distribution Amount on such
Distribution Date), (xiii) the aggregate Certificate Principal Balance of the
Class B-2 Certificates (after taking into account the payment of the Class B-2
Principal Distribution Amount on such Distribution Date) and (xiv) the aggregate
Certificate Principal Balance of the Class B-3 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 98.40% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
"Class C Certificate": Any one of the Class C Certificates as designated on
the face thereof substantially in the form annexed hereto as Exhibit A-23,
executed, authenticated and delivered by the Trustee, representing the right to
distributions as set forth herein and therein and evidencing a regular interest
in REMIC CX.
"Class C Interest" An uncertificated interest in the Trust Fund held by the
Trustee on behalf of the Holders of the Class C Certificates and the Class R-CX
Interest, evidencing a Regular Interest in REMIC 4 for purposes of the REMIC
Provisions.
"Class C Shortfall": As defined in Section 10.01(l) hereof.
"Class FMR IO Interest" An uncertificated interest in the Trust Fund,
evidencing a Regular Interest in REMIC 4 for purposes of the REMIC Provisions.
19
"Class M-1 Certificate": Any one of the Class M-1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-10, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class M-1 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-1 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date) and (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) 65.40% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
"Class M-2 Certificate": Any one of the Class M-2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-11, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class M-2 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-2 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date) and (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 71.50% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
"Class M-3 Certificate": Any one of the Class M-3 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-12, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
20
"Class M-3 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-3 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date) and (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) 75.50% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
"Class M-4 Certificate": Any one of the Class M-4 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-13, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class M-4 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-4 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), and (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 78.50% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
21
"Class M-5 Certificate": Any one of the Class M-5 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-14, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class M-5 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-5 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date) and (vi) the aggregate Certificate Principal Balance of the
Class M-5 Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) 81.50% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
"Class M-6 Certificate": Any one of the Class M-6 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-15, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class M-6 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-6 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the aggregate
22
Certificate Principal Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date) and (vii) the aggregate Certificate Principal Balance of the
Class M-6 Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) 84.20% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
"Class M-7 Certificate": Any one of the Class M-7 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-16, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class M-7 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-7 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the aggregate Certificate Principal Balance of the
Class M-5 Certificates (after taking into account the payment of the Class M-5
Principal Distribution Amount on such Distribution Date), (vii) the aggregate
Certificate Principal Balance of the Class M-6 Certificates (after taking into
account the payment of the Class M-6 Principal Distribution Amount on such
Distribution Date) and (viii) the aggregate Certificate Principal Balance of the
Class M-7 Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) 86.70% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
"Class M-8 Certificate": Any one of the Class M-8 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-17, executed, authenticated and
23
delivered by the Trustee, representing the right to distributions as set forth
herein and therein and evidencing a regular interest in REMIC 4.
"Class M-8 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-8 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the aggregate Certificate Principal Balance of the
Class M-5 Certificates (after taking into account the payment of the Class M-5
Principal Distribution Amount on such Distribution Date), (vii) the aggregate
Certificate Principal Balance of the Class M-6 Certificates (after taking into
account the payment of the Class M-6 Principal Distribution Amount on such
Distribution Date), (viii) the aggregate Certificate Principal Balance of the
Class M-7 Certificates (after taking into account the payment of the Class M-7
Principal Distribution Amount on such Distribution Date) and (ix) the aggregate
Certificate Principal Balance of the Class M-8 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 88.80% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
"Class M-9 Certificate": Any one of the Class M-9 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-18, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class M-9 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-9 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the aggregate
24
Certificate Principal Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on such
Distribution Date), (v) the aggregate Certificate Principal Balance of the Class
M-4 Certificates (after taking into account the payment of the Class M-4
Principal Distribution Amount on such Distribution Date), (vi) the aggregate
Certificate Principal Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date), (vii) the aggregate Certificate Principal Balance of the
Class M-6 Certificates (after taking into account the payment of the Class M-6
Principal Distribution Amount on such Distribution Date), (viii) the aggregate
Certificate Principal Balance of the Class M-7 Certificates (after taking into
account the payment of the Class M-7 Principal Distribution Amount on such
Distribution Date), (ix) the aggregate Certificate Principal Balance of the
Class M-8 Certificates (after taking into account the payment of the Class M-8
Principal Distribution Amount on such Distribution Date) and (x) the aggregate
Certificate Principal Balance of the Class M-9 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 90.80% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
"Class M-10 Certificate": Any one of the Class M-10 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-19 executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and therein and evidencing a
regular interest in REMIC 4.
"Class M-10 Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Class M-10 Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the aggregate
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the aggregate Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the aggregate
Certificate Principal Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the aggregate Certificate Principal Balance of the
Class M-5 Certificates (after taking into account the payment of the Class M-5
Principal Distribution Amount on such Distribution Date), (vii) the aggregate
Certificate Principal Balance of the Class M-6 Certificates (after taking into
account the payment of the Class M-6 Principal Distribution Amount on such
Distribution Date), (viii) the aggregate Certificate Principal Balance of the
Class M-7 Certificates (after taking into account the payment of the Class M-7
Principal Distribution Amount on such Distribution Date), (ix) the aggregate
Certificate Principal Balance of the Class M-8 Certificates (after taking into
account the payment
25
of the Class M-8 Principal Distribution Amount on such Distribution Date), (x)
the aggregate Certificate Principal Balance of the Class M-9 Certificates (after
taking into account the payment of the Class M-9 Principal Distribution Amount
on such Distribution Date) and (xi) the aggregate Certificate Principal Balance
of the Class M-10 Certificates immediately prior to such Distribution Date over
(y) the lesser of (A) the product of (i) 92.40% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
"Class P Certificate": Any one of the Class P Certificates as designated on
the face thereof substantially in the form annexed hereto as Exhibit A-24,
executed, authenticated and delivered by the Trustee, representing the right to
distributions as set forth herein and therein and evidencing a regular interest
in REMIC PX.
"Class P Interest": An uncertificated interest in the Trust Fund held by
the Trustee on behalf of the Holders of the Class P Certificates, evidencing a
Regular Interest in REMIC 4 for purposes of the REMIC Provisions.
"Class R Certificate": Any one of the Class R Certificates as designated on
the face thereof substantially in the form annexed hereto as Exhibit A-25,
executed, authenticated and delivered by the Trustee, evidencing the ownership
of the Class R-1 Interest, the Class R-2 Interest, the Class R-3 Interest and
the Class R-4 Interest.
"Class R-1 Interest": The Residual Interest in REMIC 1.
"Class R-2 Interest": The Residual Interest in REMIC 2.
"Class R-3 Interest": The Residual Interest in REMIC 3.
"Class R-4 Interest": The Residual Interest in REMIC 4.
"Class R-CX Certificate": Any one of the Class R-CX Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-26, executed, authenticated and delivered by the Trustee, evidencing
the ownership of the Class R-CX Interest and the Class R-SwapX Interest.
"Class R-CX Interest": The Residual Interest in REMIC CX.
"Class R-PX Certificate": Any one of the Class R-PX Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A-27, executed, authenticated and delivered by the Trustee, evidencing
the ownership of the Class R-PX Interest.
"Class R-PX Interest": The Residual Interest in REMIC PX.
26
"Class R-SwapX Interest" The Residual Interest in REMIC SwapX.
"Class Swap IO Certificate" A certificated interest in the Trust Fund,
evidencing a Regular Interest in REMIC SwapX for purposes of the REMIC
Provisions.
"Class Swap IO Interest" An uncertificated interest in the Trust Fund,
evidencing a Regular Interest in REMIC 4 for purposes of the REMIC Provisions.
"Close of Business": As used herein, with respect to any Business Day, 5:00
p.m. (New York time).
"Closing Date": August 30, 2005.
"Closing Date Mortgage Loans": The Group I Closing Date Mortgage Loans, the
Group II Closing Date Mortgage Loans and the Group III Closing Date Mortgage
Loans.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The account or accounts created and maintained by the
Master Servicer pursuant to Section 3.10(a), which shall be entitled "Deutsche
Bank National Trust Company, as Trustee, in trust for registered Holders of Long
Beach Mortgage Loan Trust 2005-WL2, Asset-Backed Certificates, Series 2005-WL2"
and which must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
"Compensating Interest": As defined in Section 3.24.
"Controlling Person": The NIMS Insurer, if no NIMS Insurer Default is
continuing, or the Holders of the majority of the Percentage Interest of the
Class C Certificates, if there is no NIMS Insurer or if a NIMS Insurer Default
has occurred and is continuing.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000, or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Depositor
and the Master Servicer.
"Corresponding Certificates": As shown on the following chart:
-----------------------------------------------------
REMIC 3 Regular Interest Corresponding Certificate
-----------------------------------------------------
IA1 Class I-A1 Certificates
-----------------------------------------------------
IA2 Class I-A2 Certificates
-----------------------------------------------------
IIA1 Class II-A1 Certificates
-----------------------------------------------------
27
-------------------------------------------------------
REMIC 3 Regular Interest Corresponding Certificate
-------------------------------------------------------
IIA2 Class II-A2 Certificates
-------------------------------------------------------
IIIA1 Class III-A1 Certificates
-------------------------------------------------------
IIIA1A Class III-A1A Certificates
-------------------------------------------------------
IIIA2 Class III-A2 Certificates
-------------------------------------------------------
IIIA3 Class III-A3 Certificates
-------------------------------------------------------
IIIA4 Class III-A4 Certificates
-------------------------------------------------------
M1 Class M-1 Certificates
-------------------------------------------------------
M2 Class M-2 Certificates
-------------------------------------------------------
M3 Class M-3 Certificates
-------------------------------------------------------
M4 Class M-4 Certificates
-------------------------------------------------------
M5 Class M-5 Certificates
-------------------------------------------------------
M6 Class M-6 Certificates
-------------------------------------------------------
M7 Class M-7 Certificates
-------------------------------------------------------
M8 Class M-8 Certificates
-------------------------------------------------------
M9 Class M-9 Certificates
-------------------------------------------------------
M10 Class M-10 Certificates
-------------------------------------------------------
B1 Class B-1 Certificates
-------------------------------------------------------
B2 Class B-2 Certificates
-------------------------------------------------------
B3 Class B-3 Certificates
-------------------------------------------------------
Class C Interest Class C Certificates
-------------------------------------------------------
P and the Class P Interest Class P Certificates
-------------------------------------------------------
"Credit Enhancement Percentage": With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is (x) the sum of
the aggregate Certificate Principal Balance of the Mezzanine Certificates, the
Class B Certificates and the Uncertificated Principal Balance of the Class C
Interest, calculated prior to distribution of the Group I Principal
28
Distribution Amount, the Group II Principal Distribution Amount and the Group
III Principal Distribution Amount in respect of the Certificates then entitled
to distributions of principal on such Distribution Date, and the denominator of
which is (y) the aggregate Stated Principal Balance of the Mortgage Loans,
calculated prior to taking into account payments of principal on the Mortgage
Loans due on the related Due Date or received during the related Prepayment
Period.
"Cumulative Loss Trigger Event": A Cumulative Loss Trigger Event has
occurred with respect to any Distribution Date in or after September 2007, if
the percentage obtained by dividing (x) the aggregate amount of Realized Losses
incurred (less any Subsequent Recoveries) with respect to the Mortgage Loans
from the Cut-off Date through the last day of the related Due Period by (y) the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date,
exceeds the applicable percentage set forth below for such Distribution Date:
Distribution Date Occurring in Cumulative Loss Percentage
------------------------------ ---------------------------------------------
September 2007 through 1.30% for the first month, plus an additional
August 2008 1/12th of 1.55% for each month thereafter.
September 2008 through 2.85% for the first month, plus an additional
August 2009 1/12th of 1.60% for each month thereafter.
September 2009 through 4.45% for the first month, plus an additional
August 2010 1/12th of 1.30% for each month thereafter.
September 2010 through 5.75% for the first month, plus an additional
August 2011 1/12th of 0.65% for each month thereafter.
September 2011 and thereafter 6.40% for each month.
"Custodial Agreement": Any agreement that may be entered into by the
Trustee and any Custodian or any agreement assigned to the Trustee providing for
holding and safekeeping of Mortgage Files on behalf of the Trust.
"Custodian": A custodian appointed as provided in Section 8.11 hereof
pursuant to a Custodial Agreement.
"Cut-off Date": With respect to each Closing Date Mortgage Loan, August 1,
2005; and with respect to each Qualified Substitute Mortgage Loan, its date of
substitution, as applicable.
"Cut-off Date Aggregate Principal Balance": The aggregate of the Cut-off
Date Principal Balances of the Mortgage Loans.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan, the
unpaid principal balance thereof as of the Cut-off Date (with respect to a
Closing Date Mortgage Loan); or as of the applicable date of substitution (with
respect to a Qualified Substitute Mortgage Loan), after giving effect to
scheduled payments due on or before the Cut-off Date, whether or not received.
"Debt Service Reduction": With respect to any Mortgage Loan, a reduction in
the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a
29
proceeding under the Bankruptcy Code, except such a reduction resulting from a
Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.01(b) hereof.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced by one
or more Qualified Substitute Mortgage Loans.
"Delinquency Percentage": With respect to any Distribution Date, the
percentage obtained by dividing (x) the aggregate Stated Principal Balance of
(i) Mortgage Loans Delinquent 60 days or more, (ii) REO Properties related to
the Mortgage Loans and (iii) Mortgage Loans in foreclosure and in bankruptcy
(excluding any such Mortgage Loans which are less than 60 days Delinquent under
the bankruptcy plan) by (y) the aggregate Stated Principal Balance of the
Mortgage Loans, in each case, calculated prior to taking into account payments
of principal on the Mortgage Loans due on the related Due Date or received
during the related Prepayment Period.
"Delinquency Trigger Event": A Delinquency Trigger Event has occurred with
respect to a Distribution Date if the Delinquency Percentage exceeds 31.00% of
the Credit Enhancement Percentage.
"Delinquent": With respect to any Mortgage Loan and related Monthly
Payment, the Monthly Payment due on a Due Date which is not made by the Close of
Business on the next scheduled Due Date for such Mortgage Loan. For example, a
Mortgage Loan is 60 or more days Delinquent if the Monthly Payment due on a Due
Date is not made by the Close of Business on the second scheduled Due Date after
such Due Date.
"Depositor": Long Beach Securities Corp., a Delaware corporation, or any
successor in interest.
"Depository": The initial Depository shall be The Depository Trust Company,
whose nominee is Cede & Co., or any other organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository shall initially be the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
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"Determination Date": With respect to any Distribution Date, the 15th day
of the calendar month in which such Distribution Date occurs or, if such 15th
day is not a Business Day, the Business Day immediately preceding such 15th day.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the REMIC other than through an
Independent Contractor; provided, however, that the Trustee (or the Master
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Master Servicer on behalf of
the Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Disqualified Organization": Any: (A) "disqualified organization" under
Section 860E of the Code, which as of the Closing Date is any of (i) 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, (ii) 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, or (iii) any organization described in Section 1381(a)(2)(C) of the Code;
(B) "electing large partnership" within the meaning of Section 775 of the Code;
or (C) other Person so designated by the Trustee based upon an Opinion of
Counsel provided by nationally recognized counsel to the Trustee that the
holding of an ownership interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an ownership interest in any Class of
Certificates (other than such Person) to incur 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. A corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof if all of its activities are subject to income
tax and a majority of its board of directors is not selected by a governmental
unit. The terms "United States," "state" and "international organization" shall
have the meanings set forth in Section 7701 of the Code.
"Distribution Account": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.10(b) which shall be entitled
"Distribution Account, Deutsche Bank National Trust Company, as Trustee, in
trust for the registered Certificateholders of Long Beach Mortgage Loan Trust
2005-WL2, Asset-Backed Certificates, Series 2005-WL2" and which must be an
Eligible Account.
"Distribution Date": The 25th day of any calendar month, or if such 25th
day is not a Business Day, the Business Day immediately following such 25th day,
commencing in September 2005.
"Due Date": With respect to each Distribution Date, the first day of the
calendar month in which such Distribution Date occurs, which is the day of the
month on which the Monthly Payment is due on a Mortgage Loan, exclusive of any
days of grace.
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"Due Period": With respect to any Distribution Date, the period commencing
on the second day of the month preceding the month in which such Distribution
Date occurs and ending on the first day of the month in which such Distribution
Date occurs.
"Early Termination Date": As defined in the Swap Agreement.
"Eligible Account": Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the short-term unsecured debt obligations of such holding company) are
rated no lower than P-1 by Xxxxx'x, F-1 by Fitch and A-1 by S&P (or comparable
ratings if Xxxxx'x, Fitch and S&P are not the Rating Agencies) at the time any
amounts are held on deposit therein; provided that so long as Washington Mutual
Bank is the Sub-Servicer, any account maintained with Washington Mutual Bank
shall be an Eligible Account if the long-term unsecured debt obligations of
Washington Mutual Bank are rated no lower than "A2" by Xxxxx'x, or "A" by Fitch
and "A-" by S&P and the short-term unsecured debt obligations of Washington
Mutual Bank are rated no lower than A-2 by S&P, provided that if the long-term
unsecured debt obligations of Washington Mutual Bank are downgraded by S&P to a
rating lower than "A-" or the short-term unsecured debt obligations of
Washington Mutual Bank are downgraded by S&P to a rating lower than A-2,
Washington Mutual Bank shall transfer the deposits in any account maintained by
Washington Mutual Bank (unless any such account is otherwise qualified as an
Eligible Account pursuant to (ii), (iii) or (iv) of the definition of Eligible
Account) to an Eligible Account within ten (10) Business Days of notification of
such downgrade, (ii) an account or accounts the deposits in which are fully
insured by the FDIC (to the limits established by such corporation), the
uninsured deposits in which account are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders will have a claim with respect to the funds in
such account or a perfected first priority security interest against such
collateral (which shall be limited to Permitted Investments) securing such funds
that is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained, (iii) a trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity or (iv) an account otherwise acceptable to the
NIMS Insurer and each Rating Agency without reduction or withdrawal of their
then current ratings of the Certificates as evidenced by a letter from each
Rating Agency to the Trustee. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Escrow Payments": As defined in Section 3.09 hereof.
"Excess Overcollateralized Amount": With respect to any Distribution Date,
the excess, if any, of (i) the Overcollateralized Amount for such Distribution
Date (assuming that 100% of the Principal Remittance Amount is applied as a
principal payment on such Distribution Date) over (ii) the Overcollateralization
Target Amount for such Distribution Date.
"Extra Principal Distribution Amount": With respect to any Distribution
Date, the lesser of (x) the Net Monthly Excess Cashflow for such Distribution
Date and (y) the Overcollateralization Deficiency Amount for such Distribution
Date.
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"Extraordinary Trust Fund Expense": Any amounts reimbursable to the
Trustee, or any director, officer, employee or agent of the Trustee, from the
Trust Fund pursuant to Section 8.05, any amounts payable from the Distribution
Account in respect of taxes pursuant to Section 10.01(g)(iii), any amounts
payable from the Distribution Account in respect of any REMIC pursuant to
Section 10.01(c), any amounts payable from the Trust Fund as a trustee fee for
any successor trustee and any amounts payable by the Trustee for the recording
of the assignments of mortgage pursuant to Section 2.01.
"Xxxxxx Xxx": Federal National Mortgage Association, or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation, or any successor thereto.
"Final Maturity Reserve Account": As defined in Section 4.10(a) hereof.
"Final Maturity Reserve Funding Date": The earlier of (a) the Distribution
Date in August 2035 and (b) the Distribution Date on which amounts on deposit in
the Final Maturity Reserve Account (after giving effect to all distributions on
such Distribution Date other than distributions from the Final Maturity Reserve
Account) are equal to the Stated Principal Balance of the Mortgage Loans with an
original term to maturity of 480 months (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period).
"Final Maturity Reserve Rate": An annual rate of 0.60%.
"Final Maturity Reserve Shortfall": With respect to any Distribution Date,
the difference between the Stated Principal Balance of the Mortgage Loans with
an original term to maturity of 480 months (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and amounts on deposit in the Final Maturity Reserve
Account (after giving effect to all distributions on such Distribution Date
other than distributions from the Final Maturity Reserve Account).
"Final Recovery Determination": With respect to any defaulted Mortgage Loan
or any REO Property (other than a Mortgage Loan or REO Property purchased by the
Seller or the Master Servicer pursuant to or as contemplated by Section 2.03,
Section 3.16(c) or Section 9.01), a determination made by the Master Servicer
that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Master Servicer, in its reasonable good faith judgment,
expects to be finally recoverable in respect thereof have been so recovered. The
Master Servicer shall maintain records, prepared by a Servicing Representative,
of each Final Recovery Determination made thereby.
"Fitch": Fitch Ratings, Inc., or its successor in interest.
"Fixed Rate Mortgage Loan": A Mortgage Loan which provides for a fixed
Mortgage Rate payable with respect thereto.
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"Formula Rate": For any Distribution Date and (a) the Class A Certificates
(other than the Class III-A1 Certificates provided a Swap Default has not
occurred and is continuing), the Mezzanine Certificates and the Class B
Certificates, LIBOR for such Distribution Date plus the related Certificate
Margin and (b) the Class III-A1 Certificates (provided a Swap Default has not
occurred and is continuing), the Class III-A1 LIBOR for such Distribution Date
plus the related Certificate Margin.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Gross Margin": With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage set forth in the related Mortgage Note that is added to the
Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note used to determine the Mortgage Rate for such Mortgage Loan.
"Gross Subsequent Recoveries": Any unexpected recoveries related to a
Liquidated Mortgage Loan received by the Master Servicer which were allocated as
a Realized Loss in reducing a Certificate Principal Balance of a Class of the
Mezzanine Certificates or the Class B Certificates on a Distribution Date prior
to the Prepayment Period in which such funds were received. Gross Subsequent
Recoveries may include but are not limited to unanticipated insurance
settlements, tax refunds or mortgage bankruptcy distributions.
"Group I Closing Date Mortgage Loans": Any of the Group I Mortgage Loans
included in the Trust Fund on the Closing Date. The aggregate Cut-off Date
Principal Balance of the Group I Closing Date Mortgage Loans is equal to
$452,866,268.28.
"Group I Final Maturity Reserve Amount": With respect to any Distribution
Date, (a) on and after the Distribution Date in September 2012 up to and
including the Final Maturity Reserve Funding Date if the constant prepayment
rate of the Mortgage Loans is equal to or less than 5% on such Distribution
Date, the lesser of (A) the product of (i) the Final Maturity Reserve Rate, (ii)
the aggregate Stated Principal Balance of the Group I Mortgage Loans on the
first day of the related Due Period (not including for this purpose the Group I
Mortgage Loans for which prepayments in full have been received and distributed
in the month prior to that Distribution Date) and (iii) a fraction, the
numerator of which is the actual number of days in the related Accrual Period
and the denominator of which is 360 and (B) the Final Maturity Reserve Shortfall
for such Distribution Date multiplied by a fraction, (1) the numerator of which
is the aggregate Stated Principal Balance of the Group I Mortgage Loans on the
first day of the related Due Period (not including for this purpose the Group I
Mortgage Loans for which prepayments in full have been received and distributed
in the month prior to that Distribution Date), and (2) the denominator of which
is the aggregate Stated Principal Balance of the Mortgage Loans on the first day
of the related Due Period (not including for this purpose the Mortgage Loans for
which prepayments in full have been received and distributed in the month prior
to that Distribution Date), and (b) on any other Distribution Date, zero.
"Group I Interest Remittance Amount": With respect to any Distribution
Date, that portion of the Available Funds for such Distribution Date
attributable to interest received or advanced with respect to the Group I
Mortgage Loans or to Compensating Interest paid by the Master Servicer with
respect to the Group I Mortgage Loans.
34
"Group I Mortgage Loans": Those Mortgage Loans identified as Group I
Mortgage Loans on the Mortgage Loan Schedule.
"Group I Principal Allocation Percentage": With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is (x) the
Group I Principal Remittance Amount for such Distribution Date, and the
denominator of which is (y) the Principal Remittance Amount for such
Distribution Date.
"Group I Principal Distribution Amount": With respect to any Distribution
Date, the sum of (i) (x) the Group I Principal Remittance Amount minus (y) the
amount of any Overcollateralization Release Amount multiplied by the Group I
Principal Allocation Percentage for such Distribution Date, and (ii) the Extra
Principal Distribution Amount multiplied by the Group I Principal Allocation
Percentage for such Distribution Date.
"Group I Principal Remittance Amount": With respect to any Distribution
Date, the sum of (i) all scheduled payments of principal collected or advanced
on the Group I Mortgage Loans by the Master Servicer that were due during the
related Due Period, (ii) all partial and full principal prepayments of the Group
I Mortgage Loans applied by the Master Servicer during the related Prepayment
Period, (iii) the principal portion of all Net Liquidation Proceeds, Insurance
Proceeds and Gross Subsequent Recoveries received during the related Prepayment
Period with respect to the Group I Mortgage Loans, (iv) that portion of the
Purchase Price, representing principal of any repurchased Group I Mortgage Loan,
deposited to the Collection Account during the related Prepayment Period, (v)
the principal portion of any Substitution Adjustments deposited in the
Collection Account during the related Prepayment Period with respect to the
Group I Mortgage Loans and (vi) on the Distribution Date on which the Trust is
to be terminated in accordance with this Agreement, that portion of the
Termination Price representing principal with respect to the Group I Mortgage
Loans.
"Group I Senior Cap Agreement": The interest rate cap agreement consisting
of a 1992 ISDA Master Agreement (Multicurrency Border) and a Schedule dated as
of the Closing Date and a 1994 ISDA Credit Support Annex (Bilateral Form New
York Law) and the related Confirmation thereto, between the Trustee and the Cap
Provider, attached as Exhibit B-1 hereto, as such agreement may be amended and
supplemented in accordance with its terms and any replacement interest rate cap
agreement acceptable to the Trustee.
"Group I Senior Certificates": The Class I-A1 Certificates and the Class
I-A2 Certificates.
"Group I Subordinate Amount": With respect to any Distribution Date, the
excess of the Stated Principal Balances of the Group I Mortgage Loans as of such
Distribution Date over the aggregate Certificate Principal Balance of the Group
I Senior Certificates immediately after such Distribution Date.
"Group I Senior Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Group I Senior Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the aggregate Certificate Principal
Balance of the Group I Senior Certificates immediately prior to such
Distribution Date
35
over (y) the lesser of (A) the product of (i) 54.90% and (ii) the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) minus 0.50% of the aggregate Stated Principal
Balance of the Group I Mortgage Loans as of the Cut-off Date.
"Group II Closing Date Mortgage Loans": Any of the Group II Mortgage Loans
included in the Trust Fund on the Closing Date. The aggregate Cut-off Date
Principal Balance of the Group II Closing Date Mortgage Loans is equal to
$873,528,669.60.
"Group II Final Maturity Reserve Amount": With respect to any Distribution
Date, (a) on and after the Distribution Date in September 2012 up to and
including the Final Maturity Reserve Funding Date if the constant prepayment
rate of the Mortgage Loans is equal to or less than 5% on such Distribution
Date, the lesser of (A) the product of (i) the Final Maturity Reserve Rate, (ii)
the aggregate Stated Principal Balance of the Group II Mortgage Loans on the
first day of the related Due Period (not including for this purpose the Group II
Mortgage Loans for which prepayments in full have been received and distributed
in the month prior to that Distribution Date) and (iii) a fraction, the
numerator of which is the actual number of days in the related Accrual Period
and the denominator of which is 360 and (B) the Final Maturity Reserve Shortfall
for such Distribution Date multiplied by a fraction, (1) the numerator of which
is the aggregate Stated Principal Balance of the Group II Mortgage Loans on the
first day of the related Due Period (not including for this purpose the Group II
Mortgage Loans for which prepayments in full have been received and distributed
in the month prior to that Distribution Date), and (2) the denominator of which
is the aggregate Stated Principal Balance of the Mortgage Loans on the first day
of the related Due Period (not including for this purpose the Mortgage Loans for
which prepayments in full have been received and distributed in the month prior
to that Distribution Date), and (b) on any other Distribution Date, zero.
"Group II Interest Remittance Amount": With respect to any Distribution
Date, that portion of the Available Funds for such Distribution Date
attributable to interest received or advanced with respect to the Group II
Mortgage Loans or to Compensating Interest paid by the Master Servicer with
respect to the Group II Mortgage Loans.
"Group II Mortgage Loans": Those Mortgage Loans identified as Group II
Mortgage Loans on the Mortgage Loan Schedule.
"Group II Principal Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group II Principal Remittance Amount for such Distribution
Date, and the denominator of which is (y) the Principal Remittance Amount for
such Distribution Date.
"Group II Principal Distribution Amount": With respect to any Distribution
Date, the sum of (i) (x) the Group II Principal Remittance Amount minus (y) the
amount of any Overcollateralization Release Amount multiplied by the Group II
Principal Allocation
36
Percentage for such Distribution Date, and (ii) the Extra Principal Distribution
Amount multiplied by the Group II Principal Allocation Percentage for such
Distribution Date.
"Group II Principal Remittance Amount": With respect to any Distribution
Date, the sum of (i) all scheduled payments of principal collected or advanced
on the Group II Mortgage Loans by the Master Servicer that were due during the
related Due Period, (ii) all partial and full principal prepayments of the Group
II Mortgage Loans applied by the Master Servicer during the related Prepayment
Period, (iii) the principal portion of all Net Liquidation Proceeds, Insurance
Proceeds and Gross Subsequent Recoveries received during the related Prepayment
Period with respect to the Group II Mortgage Loans, (iv) that portion of the
Purchase Price, representing principal of any repurchased Group II Mortgage
Loan, deposited to the Collection Account during the related Prepayment Period,
(v) the principal portion of any Substitution Adjustments deposited in the
Collection Account during the related Prepayment Period with respect to the
Group II Mortgage Loans and (vi) on the Distribution Date on which the Trust is
to be terminated in accordance with this Agreement, that portion of the
Termination Price representing principal with respect to the Group II Mortgage
Loans.
"Group II Senior Cap Agreement": The interest rate cap agreement consisting
of a 1992 ISDA Master Agreement (Multicurrency Border) and a Schedule dated as
of the Closing Date and a 1994 ISDA Credit Support Annex (Bilateral Form New
York Law) and the related Confirmation thereto, between the Trustee and the Cap
Provider, attached as Exhibit B-2 hereto, as such agreement may be amended and
supplemented in accordance with its terms and any replacement interest rate cap
agreement acceptable to the Trustee.
"Group II Senior Certificates": The Class II-A1 Certificates, the Class
II-A2 Certificates and the Class II-A3 Certificates.
"Group II Senior Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Group II Senior Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the aggregate Certificate Principal
Balance of the Group II Senior Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 54.90% and (ii)
the aggregate Stated Principal Balance of the Group II Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Group II Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) minus 0.50% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the Cut-off Date.
"Group II Subordinate Amount": With respect to any Distribution Date, the
excess of the Stated Principal Balances of the Group II Mortgage Loans as of
such Distribution Date over the aggregate Certificate Principal Balance of the
Group II Senior Certificates immediately after such Distribution Date.
37
"Group III Closing Date Mortgage Loans": Any of the Group III Mortgage
Loans included in the Trust Fund on the Closing Date. The aggregate Cut-off Date
Principal Balance of the Group III Closing Date Mortgage Loans is equal to
$1,429,321,730.44.
"Group III Final Maturity Reserve Amount": With respect to any Distribution
Date, (a) on and after the Distribution Date in September 2012 up to and
including the Final Maturity Reserve Funding Date if the constant prepayment
rate of the Mortgage Loans is equal to or less than 5% on such Distribution
Date, the lesser of (A) the product of (i) the Final Maturity Reserve Rate, (ii)
the aggregate Stated Principal Balance of the Group III Mortgage Loans on the
first day of the related Due Period (not including for this purpose the Group
III Mortgage Loans for which prepayments in full have been received and
distributed in the month prior to that Distribution Date) and (iii) a fraction,
the numerator of which is the actual number of days in the related Accrual
Period and the denominator of which is 360 and (B) the Final Maturity Reserve
Shortfall for such Distribution Date multiplied by a fraction, (1) the numerator
of which is the aggregate Stated Principal Balance of the Group III Mortgage
Loans on the first day of the related Due Period (not including for this purpose
the Group III Mortgage Loans for which prepayments in full have been received
and distributed in the month prior to that Distribution Date), and (2) the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans on the first day of the related Due Period (not including for this purpose
the Mortgage Loans for which prepayments in full have been received and
distributed in the month prior to that Distribution Date), and (b) on any other
Distribution Date, zero.
"Group III Fraction:" With respect to any Distribution Date, the
Certificate Principal Balance of the Class III-A1 Certificates and the Class
III-A1A Certificates immediately prior to such Distribution Date divided by the
Certificate Principal Balance of the Group III Senior Certificates immediately
prior to such Distribution Date.
"Group III Interest Remittance Amount": With respect to any Distribution
Date, that portion of the Available Funds for such Distribution Date
attributable to interest received or advanced with respect to the Group III
Mortgage Loans or to Compensating Interest paid by the Master Servicer with
respect to the Group III Mortgage Loans.
"Group III Mortgage Loans": Those Mortgage Loans identified as Group III
Mortgage Loans on the Mortgage Loan Schedule.
"Group III Principal Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group III Principal Remittance Amount for such Distribution
Date, and the denominator of which is (y) the Principal Remittance Amount for
such Distribution Date.
"Group III Principal Distribution Amount": With respect to any Distribution
Date, the sum of (i) (x) the Group III Principal Remittance Amount minus (y) the
amount of any Overcollateralization Release Amount multiplied by the Group III
Principal Allocation Percentage for such Distribution Date, and (ii) the Extra
Principal Distribution Amount multiplied by the Group III Principal Allocation
Percentage for such Distribution Date.
"Group III Principal Remittance Amount": With respect to any Distribution
Date, the sum of (i) all scheduled payments of principal collected or advanced
on the Group III Mortgage
38
Loans by the Master Servicer that were due during the related Due Period, (ii)
all partial and full principal prepayments of the Group III Mortgage Loans
applied by the Master Servicer during the related Prepayment Period, (iii) the
principal portion of all Net Liquidation Proceeds, Insurance Proceeds and Gross
Subsequent Recoveries received during the related Prepayment Period with respect
to the Group III Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group III Mortgage Loan, deposited to
the Collection Account during the related Prepayment Period, (v) the principal
portion of any Substitution Adjustments deposited in the Collection Account
during the related Prepayment Period with respect to the Group III Mortgage
Loans and (vi) on the Distribution Date on which the Trust is to be terminated
in accordance with this Agreement, that portion of the Termination Price
representing principal with respect to the Group III Mortgage Loans.
"Group III Senior Cap Agreement": The interest rate cap agreement
consisting of a 1992 ISDA Master Agreement (Multicurrency Border) and a Schedule
dated as of the Closing Date and a 1994 ISDA Credit Support Annex (Bilateral
Form New York Law) and the related Confirmation thereto, between the Trustee and
the Cap Provider, attached as Exhibit B-3 hereto, as such agreement may be
amended and supplemented in accordance with its terms and any replacement
interest rate cap agreement acceptable to the Trustee.
"Group III Senior Certificates": The Class III-A1 Certificates, the Class
III-A1A Certificates, the Class III-A2 Certificates, the Class III-A3
Certificates and the Class III-A4 Certificates.
"Group III Senior Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the amount equal to the lesser of (I) the aggregate Certificate
Principal Balance of the Group III Senior Certificates immediately prior to such
Distribution Date and (II) the excess of (x) the aggregate Certificate Principal
Balance of the Group III Senior Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 54.90% and (ii)
the aggregate Stated Principal Balance of the Group III Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Group III Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) minus 0.50% of the aggregate Stated Principal
Balance of the Group III Mortgage Loans as of the Cut-off Date.
"Group III Subordinate Amount": With respect to any Distribution Date, the
excess of the Stated Principal Balances of the Group III Mortgage Loans as of
such Distribution Date over the aggregate Certificate Principal Balance of the
Group III Senior Certificates immediately after such Distribution Date.
"Indenture": The indenture or a document of similar import, if any, entered
into following the Closing Date, by the NIMS Issuer relating to the NIM Notes to
be issued thereunder.
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"Independent": When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Master
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, trust administrator, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail to
be Independent of the Depositor or the Master Servicer or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor or the Master Servicer or any Affiliate
thereof, as the case may be.
"Independent Contractor": Either (i) any Person (other than the Master
Servicer) that would be an "independent contractor" with respect to any of the
REMICs created hereunder within the meaning of Section 856(d)(3) of the Code if
such REMIC were a real estate investment trust (except that the ownership tests
set forth in that Section shall be considered to be met by any Person that owns,
directly or indirectly, 35% or more of any Class of Certificates), so long as
each such REMIC does not receive or derive any income from such Person and
provided that the relationship between such Person and such REMIC is at arm's
length, all within the meaning of Treasury Regulation Section 1.856-4(b)(5), or
(ii) any other Person (including the Master Servicer) if the Trustee has
received an Opinion of Counsel to the effect that the taking of any action in
respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a) of
the Code), or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Index": With respect to each Adjustable Rate Mortgage Loan and with
respect to each related Adjustment Date, the index as specified in the related
Mortgage Note.
"Initial Certificate Principal Balance": With respect to any Regular
Certificate, the amount designated "Initial Certificate Principal Balance" on
the face thereof.
"Initial Notional Amount": With respect to any Class C Certificate, the
amount designated "Initial Notional Amount" on the face thereof.
"Insurance Proceeds": Proceeds of any title policy, hazard policy or other
insurance policy covering a Mortgage Loan or the related Mortgaged Property
(including any related PMI Policy), to the extent such proceeds are not (i) to
be applied to the restoration of the related Mortgaged Property or released to
the Mortgagor in accordance with the procedures that the Master Servicer would
follow in servicing mortgage loans held for its own account, subject to the
terms and conditions of the related Mortgage Note and Mortgage or (ii) Gross
Subsequent Recoveries with respect to such Mortgage Loan.
"Insured NIM Notes": Net interest margin securities, if any, issued by the
NIMS Issuer, which are backed, in whole or in part, by the cashflow on certain
or all of the Class C Certificates and the Class P Certificates and insured by
the NIMS Insurer.
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"Interest Determination Date": With respect to the Class A Certificates,
the Mezzanine Certificates and the Class B Certificates and each Accrual Period,
the second LIBOR Business Day preceding the commencement of such Accrual Period.
"Interest Remittance Amount": The Group I Interest Remittance Amount, the
Group II Interest Remittance Amount and the Group III Interest Remittance
Amount.
"Late Collections": With respect to any Mortgage Loan, all amounts received
subsequent to the Determination Date immediately following any related Due
Period, whether as late payments of Monthly Payments or as Insurance Proceeds,
Liquidation Proceeds, Gross Subsequent Recoveries or otherwise, which represent
late payments or collections of principal and/or interest due (without regard to
any acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent on a contractual basis for such Due Period and not previously
recovered.
"LIBOR": With respect to each Accrual Period, the rate determined by the
Trustee on the related Interest Determination Date on the basis of the "Interest
Settlement Rate" for United States dollar deposits of one-month maturity set
forth by the British Bankers' Association (the "BBA"), as such rate appears on
the Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date. With respect to any Interest Determination Date, if the
BBA's Interest Settlement Rate does not appear on Telerate Page 3750 as of 11:00
a.m. (London time) on such date, or if Telerate Page 3750 is not available on
such date the Trustee will obtain such rate from Reuters Monitor Money Rates
Service page "LIBOR01" or Bloomberg L.P. page "BBAM." Alternatively, the Trustee
may request the principal London office of each of the Reference Banks to
provide a quotation of its rate. On such Interest Determination Date, LIBOR for
the related Accrual Period will be established by the Trustee as follows:
(i) If on such Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the related Accrual
Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiples of
0.03125%); and
(ii) If on such Interest Determination Date fewer than two
Reference Banks provide such offered quotations, LIBOR for the related
Accrual Period shall be the higher of (i) LIBOR as determined on the
previous Interest Determination Date and (ii) the Reserve Interest
Rate.
The Trustee will select a particular index as the alternative index only if
it receives an Opinion of Counsel that the selection of such index will not
cause any REMIC to lose its classification as a REMIC for federal income tax
purposes.
"LIBOR Business Day": Any day on which banks in The City of London, England
and New York City are open for conducting transactions in foreign currency and
exchange.
"Liquidated Mortgage Loan": As to any Distribution Date, any Mortgage Loan
in respect of which the Master Servicer has determined, in accordance with the
servicing procedures specified herein, as of the end of the related Prepayment
Period, that all Liquidation Proceeds
41
which it expects to recover with respect to the liquidation of the Mortgage Loan
or disposition of the related REO Property have been recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan or (iii) such Mortgage Loan is
removed from the Trust Fund by reason of its being purchased, sold or replaced
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or Section 9.01.
With respect to any REO Property, either of the following events: (i) a Final
Recovery Determination is made as to such REO Property or (ii) such REO Property
is removed from the Trust Fund by reason of its being sold or purchased pursuant
to Section 3.23, Section 3.16(c) or Section 9.01.
"Liquidation Proceeds": The amount (other than amounts received in respect
of the rental of any REO Property prior to REO Disposition) received by the
Master Servicer in connection with (i) the taking of all or a part of a
Mortgaged Property by exercise of the power of eminent domain or condemnation,
(ii) the liquidation of a defaulted Mortgage Loan by means of a trustee's sale,
foreclosure sale or otherwise or (iii) the repurchase, substitution or sale of a
Mortgage Loan or an REO Property pursuant to or as contemplated by Section 2.03,
Section 3.16(c), Section 3.23 or Section 9.01.
"Loan Group": Any of Loan Group I, Loan Group II or Loan Group III.
"Loan Group I": All of the Group I Mortgage Loans collectively.
"Loan Group II": All of the Group II Mortgage Loans collectively.
"Loan Group III": All of the Group III Mortgage Loans collectively.
"Loan-to-Value Ratio": As of any date and as to any Mortgage Loan, the
fraction, expressed as a percentage, the numerator of which is the (x) Principal
Balance of the Mortgage Loan (if such Mortgage Loan is secured by a first lien
on the related Mortgaged Property) or the sum of the Principal Balance of the
Mortgage Loan and any other mortgage loan secured by a senior lien on the
related Mortgaged Property (if such Mortgage Loan is secured by a junior lien on
the related Mortgaged Property) and the denominator of which is (y) the Value of
the related Mortgaged Property.
"Lost Note Affidavit": With respect to any Mortgage Loan as to which the
original Mortgage Note has been permanently lost or destroyed and has not been
replaced, an affidavit from the Seller certifying that the original Mortgage
Note has been lost or destroyed (together with a copy of the related Mortgage
Note and indemnifying the Trust against any loss, cost or liability resulting
from the failure to deliver the original Mortgage Note) in the form of Exhibit H
hereto.
"Marker Rate": With respect to the Class C Interest and any Distribution
Date, a per annum rate equal to two (2) multiplied by the weighted average of
the Pass-Through Rates for REMIC 3 Regular Xxxxxxxxx XX0, XX0, IIA1, IIA2,
IIIA1, IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0, X0, X0, X0, X0, X0, M10, B1,
B2, B3 and ZZ, with (A) the rates on each such REMIC 3 Regular Interest (other
the REMIC 1 Regular Interest ZZ) subject to a cap equal to the
42
lesser of (i) LIBOR plus the Certificate Margin for the Corresponding
Certificate for such REMIC 3 Regular Interest, and (ii) the Net WAC Rate for the
Corresponding Certificates, (B) the rate on REMIC 3 Regular Interest ZZ subject
to a cap of zero for purposes of this calculation, and (C) the rates on all of
the REMIC 3 Regular Interests multiplied by a fraction the numerator of which is
the actual number of days elapsed in the Accrual Period for each such REMIC 3
Regular Interest and the denominator of which is 30.
"Master Servicer": Long Beach Mortgage Company, a Delaware corporation, or
any successor servicer appointed as herein provided, in its capacity as Master
Servicer hereunder.
"Master Servicer Event of Default": One or more of the events described in
Section 7.01.
"Master Servicer Prepayment Charge Payment Amount": The amounts (i) payable
by the Master Servicer in respect of any Prepayment Charges waived other than in
accordance with the standard set forth in Section 2.04(a)(viii) or (ii)
collected from the Master Servicer in its capacity as Seller in respect of a
remedy for the breach of the representation and warranty made by the Master
Servicer in its capacity as Seller set forth in Section 2.04(a)(vii).
"Master Servicer Remittance Date": With respect to any Distribution Date,
3:00 p.m. New York time on the Business Day preceding the Distribution Date.
"Maximum ZZ Uncertificated Accrued Interest Deferral Amount": With respect
to any Distribution Date, the excess of (i) Uncertificated Accrued Interest
calculated with the Uncertificated Pass-Through Rate for REMIC 3 Regular
Interest ZZ and an Uncertificated Principal Balance equal to the excess of (x)
the Uncertificated Principal Balance of REMIC 3 Regular Interest ZZ over (y) the
REMIC 3 Overcollateralized Amount, in each case for such Distribution Date, over
(ii) Uncertificated Accrued Interest on REMIC 3 Regular Xxxxxxxxx XX0, XX0,
IIA1, IIA2, IIIA1, IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0, X0, X0, X0, X0,
X0, M10, B1, B2 and B3, with the rate on each such REMIC 1 Regular Interest
subject to a cap equal to the lesser of (i) LIBOR plus the Certificate Margin
for the Corresponding Certificate for such REMIC 3 Regular Interest, and (ii)
the Net WAC Rate for the Corresponding Certificates; provided, however, that for
this purpose, calculations of the Uncertificated REMIC 3 Pass-Through Rate and
the related caps with respect to all of the REMIC 3 Regular Interests shall be
multiplied by a fraction, the numerator of which is the actual number of days in
the Accrual Period and the denominator of which is 30.
"Maximum Mortgage Rate": With respect to each Mortgage Loan, the percentage
set forth in the related Mortgage Note as the maximum Mortgage Rate thereunder.
"Mezzanine Certificates": The Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates, the Class
M-5 Certificates, the Class M-6 Certificates, the Class M-7 Certificates, the
Class M-8 Certificates, the Class M-9 Certificates and the Class M-10
Certificates.
"Minimum Mortgage Rate": With respect to each Mortgage Loan, the percentage
set forth in the related Mortgage Note as the minimum Mortgage Rate thereunder.
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"Monthly Interest Distributable Amount": With respect to any Distribution
Date and the Class A Certificates, the Mezzanine Certificates and the Class B
Certificates, the amount of interest accrued during the related Accrual Period
at the related Pass-Through Rate on the Certificate Principal Balance of such
Class immediately prior to such Distribution Date. With respect to the Class C
Interest and any Distribution Date, the amount of interest accrued during the
related Accrual Period at the related Pass-Through Rate on the Notional Amount
of such Class immediately prior to such Distribution Date. With respect to the
Class C Certificates and any Distribution Date, the Monthly Interest
Distributable Amount shall equal the Monthly Interest Distributable Amount for
the Class C Interest.
In all cases, the Monthly Interest Distributable Amount for any Class of
Certificates and the Class C Interest shall be reduced by any Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls allocated to such Class
under Section 1.03.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
Master Servicer pursuant to Sections 3.01 and 3.07; and (c) on the assumption
that all other amounts, if any, due under such Mortgage Loan are paid when due.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in interest.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien or second lien on, or first priority security interest in or second
priority security interest in, a Mortgaged Property securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned to the Trustee
and delivered to the Trustee or another Custodian pursuant to Section 2.01 or
Section 2.03(d) as from time to time held as a part of the Trust Fund, the
Mortgage Loans so held being identified in the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The agreement between the Master
Servicer, in its capacity as Seller, and the Depositor, regarding the transfer
of the Mortgage Loans by the Seller to or at the direction of the Depositor,
substantially in the form attached hereto as Exhibit C.
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in REMIC 1 on such date, attached hereto as Exhibit D. The Mortgage
Loan Schedule shall be prepared by the Seller and shall set forth the following
information as of the Cut-off Date with respect to each Mortgage Loan, as
applicable:
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(i) the Mortgagor's name and the originator's Mortgage Loan
identifying number;
(ii) the street address of the Mortgaged Property including the
state and zip code;
(iii) a code indicating whether the Mortgaged Property is
owner-occupied;
(iv) the type of Residential Dwelling constituting the Mortgaged
Property;
(v) the original months to maturity;
(vi) the Loan-to-Value Ratio and the combined Loan-to-Value Ratio
at origination;
(vii) the Mortgage Rate in effect immediately following the
Cut-off Date;
(viii) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(ix) the stated maturity date;
(x) the amount of the Monthly Payment due on the first Due Date
after the Cut-off Date;
(xi) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance;
(xii) the original principal amount of the Mortgage Loan;
(xiii) the Stated Principal Balance of the Mortgage Loan as of
the Close of Business on the Cut-off Date;
(xiv) whether such Mortgage Loan is a Fixed Rate Mortgage Loan or
an Adjustable Rate Mortgage Loan, and with respect to each Adjustable
Rate Mortgage Loan: (a) the Gross Margin, (b) the Maximum Mortgage
Rate, (c) the Minimum Mortgage Rate, (d) the Periodic Rate Cap for the
first Adjustment Date and each subsequent Adjustment Date and (e) the
next Adjustment Date immediately following the Cut-off Date;
(xv) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out refinancing);
(xvi) the Mortgage Rate at origination;
(xvii) a code indicating the documentation program;
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(xviii) the Seller's risk grade and the FICO score;
(xix) the Origination Value of the Mortgaged Property;
(xx) the sale price of the Mortgaged Property, if applicable;
(xxi) whether such Mortgage Loan is secured by a first lien or a
second lien on the related Mortgaged Property;
(xxii) the date of origination;
(xxiii) the stated remaining months to maturity as of the Cut-off
Date;
(xxiv) the current principal and interest payment of the Mortgage
Loan as of the Cut-off Date;
(xxv) the interest "paid to date" of the Mortgage Loan as of the
Cut-off Date;
(xxvi) a code indicating whether the Mortgage Loan is a Group I
Mortgage Loan, a Group II Mortgage Loan or a Group III Mortgage Loan;
(xxvii) a code indicating the Index that is associated with such
Mortgage Loan (if such Mortgage Loan is an Adjustable Rate Mortgage
Loan);
(xxviii) the rate adjustment frequency (if such Mortgage Loan is
an Adjustable Rate Mortgage Loan);
(xxix) the number of years the prepayment penalty is in effect;
and
(xxx) a code indicating that such Mortgage Loan is covered under
the PMI Policy, if applicable.
The Mortgage Loan Schedule shall set forth the following information, with
respect to the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the
number of Mortgage Loans; (2) the Cut-off Date Principal Balance of the Mortgage
Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans and (4) the
weighted average maturity of the Mortgage Loans. The Mortgage Loan Schedule
shall be amended from time to time by the Master Servicer in accordance with the
provisions of this Agreement. With respect to any Qualified Substitute Mortgage
Loan, Cut-off Date shall refer to the related Cut-off Date for such Mortgage
Loan, determined in accordance with the definition of Cut-off Date herein. The
Mortgage Loan Schedule shall clearly identify the Mortgage Loans that are
included in Group I Mortgage Loans, those that are included in Group II Mortgage
Loans and those that are included in Group III Mortgage Loans.
"Mortgage Note": The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
46
"Mortgage Pool": The pool of Mortgage Loans, identified on Exhibit D from
time to time, and any REO Properties acquired in respect thereof.
"Mortgage Rate": With respect to each Fixed Rate Mortgage Loan, the annual
rate set forth in the related Mortgage Note, as amended, modified or
supplemented from time to time. With respect to each Adjustable Rate Mortgage
Loan, the annual rate at which interest accrues on such Mortgage Loan from time
to time in accordance with the provisions of the related Mortgage Note, which
rate (A) as of any date of determination until the first Adjustment Date
following the Cut-off Date shall be the rate set forth in the Mortgage Loan
Schedule as the Mortgage Rate in effect immediately following the Cut-off Date
and (B) as of any date of determination thereafter shall be the rate as adjusted
on the most recent Adjustment Date, to equal the sum, rounded to the next
highest or nearest 0.125% (as provided in the Mortgage Note), of the Index,
determined as set forth in the related Mortgage Note, plus the related Gross
Margin subject to the limitations set forth in the related Mortgage Note. With
respect to each Mortgage Loan that becomes an REO Property, as of any date of
determination, the annual rate determined in accordance with the immediately
preceding sentence as of the date such Mortgage Loan became an REO Property.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple or leasehold estate in a
parcel of real property improved by a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": With respect to any Liquidated Mortgage Loan or
any other disposition of related Mortgaged Property (including REO Property),
the related Liquidation Proceeds net of Advances, Servicing Advances, Servicing
Fees and any other servicing fees received and retained in connection with the
liquidation of such Mortgage Loan or Mortgaged Property in accordance with the
terms of this Agreement.
"Net Monthly Excess Cashflow": With respect to each Distribution Date, the
sum of (a) any Overcollateralization Release Amount for such Distribution Date,
(b) any Remaining Principal Distribution Amount and (c) the positive excess of
(x) Available Funds for such Distribution Date over (y) the sum for such
Distribution Date of (A) the Monthly Interest Distributable Amounts for the
Class A Certificates, the Mezzanine Certificates and the Class B Certificates,
(B) the Unpaid Interest Shortfall Amounts for the Class A Certificates, (C) the
Trust Swap Payment, (D) the Aggregate Final Maturity Reserve Amount, (E) any
Swap Termination Payment (only if the Swap Default is attributable to the Trust)
and (F) the Principal Remittance Amount.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest equal
to the then applicable Mortgage Rate for such Mortgage Loan minus the Servicing
Fee Rate.
"Net Prepayment Interest Shortfall": With respect to any Distribution Date,
the excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
47
"Net Swap Payment": With respect to any Distribution Date, the excess, if
any, of the Swap Counterparty Payment for the related Swap Payment Date over the
Trust Swap Payment for the related Swap Payment Date.
"Net WAC Rate":
For any Distribution Date and the Group I Senior Certificates, a per annum
rate equal to (a) the excess, if any, of (i) the weighted average of the
Adjusted Net Mortgage Rates of the Group I Mortgage Loans, weighted on the basis
of the Stated Principal Balances thereof as of the Due Date in the month
preceding the month of such Distribution Date over (ii) the percentage
equivalent of a fraction, (1) the numerator of which is the Group I Final
Maturity Reserve Amount for such Distribution Date multiplied by 12, and (2) the
denominator of which is the aggregate Stated Principal Balance of the Group I
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date multiplied by (b) a fraction, the numerator of which is 30 and
the denominator of which is the actual number of days elapsed in the related
Accrual Period. For federal income tax purposes, the Net WAC Rate for the Group
I Senior Certificates shall be expressed as a rate equal to the Uncertificated
REMIC 3 Pass-Through Rate for REMIC 3 Regular Interest 1GRP multiplied by a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Accrual Period.
For any Distribution Date and the Group II Senior Certificates, a per annum
rate equal to (a) the excess, if any, of (i) the weighted average of the
Adjusted Net Mortgage Rates of the Group II Mortgage Loans, weighted on the
basis of the Stated Principal Balances thereof as of the Due Date in the month
preceding the month of such Distribution Date over (ii) the percentage
equivalent of a fraction, (1) the numerator of which is the Group II Final
Maturity Reserve Amount for such Distribution Date multiplied by 12, and (2) the
denominator of which is the aggregate Stated Principal Balance of the Group II
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date multiplied by (b) a fraction, the numerator of which is 30 and
the denominator of which is the actual number of days elapsed in the related
Accrual Period. For federal income tax purposes, the Net WAC Rate for the Group
II Senior Certificates shall be expressed as a rate equal to the Uncertificated
REMIC 3 Pass-Through Rate for REMIC 3 Regular Interest 2GRP multiplied by a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Accrual Period.
For any Distribution Date and the Group III Senior Certificates, a per
annum rate equal to (a) the excess, if any, of (i) the weighted average of the
Adjusted Net Mortgage Rates of the Group III Mortgage Loans, weighted on the
basis of the Stated Principal Balances thereof as of the Due Date in the month
preceding the month of such Distribution Date over (ii) the percentage
equivalent of a fraction, (1) the numerator of which is the Group III Final
Maturity Reserve Amount for such Distribution Date multiplied by 12, and (2) the
denominator of which is the aggregate Stated Principal Balance of the Group III
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date multiplied by (b) a fraction, the numerator of which is 30 and
the denominator of which is the actual number of days elapsed in the related
Accrual Period. For federal income tax purposes, the Net WAC Rate for the Group
III Senior Certificates shall be expressed as a rate equal to the Uncertificated
REMIC 3 Pass-Through Rate for REMIC 3 Regular Interest 3GRP multiplied by a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Accrual Period.
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For any Distribution Date and the Mezzanine Certificates and the Class B
Certificates, the Subordinated Net WAC Rate.
"Net WAC Rate Carryover Amount": With respect to the Class A Certificates,
the Mezzanine Certificates, the Class B Certificates and any Distribution Date
for which the Pass-Through Rate for such Class of Certificates for such
Distribution Date is the related Net WAC Rate, the sum of (i) the positive
excess of (A) the amount of interest that would have been distributable to such
Class of Certificates on such Distribution Date if the Pass-Through Rate for
such Class of Certificates for such Distribution Date were calculated at the
related Formula Rate over (B) the amount of interest distributable on such Class
of Certificates at the related Net WAC Rate for such Distribution Date and (ii)
the related Net WAC Rate Carryover Amount for the previous Distribution Date not
previously distributed together with interest thereon at a rate equal to the
related Formula Rate for such Class of Certificates for the most recently ended
Accrual Period.
"New Lease": Any lease of REO Property entered into on behalf of the Trust,
including any lease renewed or extended on behalf of the Trust if the Trust has
the right to renegotiate the terms of such lease.
"NIM Notes": The Insured NIM Notes and the Other NIM Notes.
"NIMS Insurer": A Person, or any of its successors that shall be the
insurer under an insurance policy insuring certain payments on Insured NIM
Notes, if any, provided, however, upon the occurrence of certain events (as set
forth in the Indenture and/or any other agreement among such Person, the NIMS
Issuer, the Master Servicer, the Trustee and/or other Persons), the NIMS Insurer
shall be the Person designated in the Indenture or such other agreement. If none
of the net interest margin securities have been issued by the NIMS Issuer, that
are insured by an insurance policy, there shall be no NIMS Insurer under this
Agreement, all references to the NIMS Insurer or Insured NIM Notes in this
agreement are for administrative convenience only, shall be completely
disregarded and no Person shall have any rights of the NIMS Insurer under this
Agreement.
"NIMS Insurer Default": The existence and continuation of any default by
the NIMS Insurer (including a failure by the NIMS Insurer to make a payment)
under an insurance policy or policies issued in connection with the Indenture.
"NIMS Issuer": One or more Affiliates of the Depositor or Credit Suisse
First Boston LLC and/or one or more entities sponsored by an Affiliate of the
Depositor or Credit Suisse First Boston LLC.
"Nonrecoverable Advance": Any Advance or Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Master Servicer, will not or, in the
case of a proposed Advance or Servicing Advance, would not be ultimately
recoverable from related late payments, Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
"Notional Amount": With respect to the Class C Interest, immediately prior
to any Distribution Date, an amount equal to the aggregate of the Uncertificated
Principal Balances of
49
the REMIC 1 Regular Interests. With respect to the Class C Certificates,
immediately prior to any Distribution Date, an amount equal to the Notional
Amount of the Class C Interest.
The Notional Amount of the FM Reserve IO Class for any Distribution Date
will equal the Stated Principal Balance of the Mortgage Loans for such
Distribution Date. The Notional Amount of the Swap IO Class will at all times
equal the Certificate Principal Balance of the Class III-A1 Certificates on such
Distribution Date.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a vice president (however
denominated), and by the Treasurer, the Secretary, or one of the assistant
treasurers or assistant secretaries of the Master Servicer, the Seller or the
Depositor, as applicable.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be a salaried counsel for the Depositor or the Master Servicer,
reasonably acceptable to the Trustee, if such opinion is delivered to the
Trustee, except that any opinion of counsel relating to (a) the qualification of
any Trust REMIC as a REMIC or (b) compliance with the REMIC Provisions must be
an opinion of Independent counsel.
"Optional Termination Date": The first Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans and each REO Property
remaining in the Trust Fund is equal to or less than 10% of the Cut-off Date
Principal Balance of the Closing Date Mortgage Loans.
"Original Class Certificate Principal Balance": With respect to the Class A
Certificates, the Mezzanine Certificates, the Class B Certificates and the Class
P Certificates, the corresponding Certificate Principal Balance on the Closing
Date.
"Original Class Notional Amount": With respect to the Class C Interest,
$2,755,716,668.32.
"Origination Value": With respect to any Mortgaged Property, the lesser of
(i) the Appraised Value thereof and (ii) the value thereof as determined and
assigned at origination by a review appraisal conducted by the Seller.
"Other NIM Notes": Net Interest Margin Securities, if any, issued by the
NIMS Issuer, which are backed, in whole or in part, by the cashflow on certain
Class C Certificates and the Class P Certificates and not insured by any NIMS
Insurer.
"Overcollateralization Deficiency Amount": With respect to any Distribution
Date, the amount, if any, by which the Overcollateralization Target Amount
exceeds the Overcollateralized Amount on such Distribution Date (assuming that
100% of the aggregate Principal Remittance Amount is applied as a principal
payment on such Distribution Date).
"Overcollateralization Floor": 0.50% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
50
"Overcollateralization Release Amount": With respect to any Distribution
Date, the lesser of (x) the Principal Remittance Amount for such Distribution
Date and (y) the Excess Overcollateralized Amount.
"Overcollateralization Target Amount": With respect to any Distribution
Date (i) prior to the Stepdown Date, 0.80% of the aggregate Cut-off Date
Principal Balance of the Closing Date Mortgage Loans, (ii) on or after the
Stepdown Date provided a Trigger Event is not in effect, the greater of (x) the
lesser of (I) approximately 0.80% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off Date and (II) approximately 1.60% of the
aggregate Stated Principal Balance of the Mortgage Loans on the last day of the
related Due Period (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and (y) the Overcollateralization Floor, and (iii) on or after the
Stepdown Date if a Trigger Event is in effect, the Overcollateralization Target
Amount for the immediately preceding Distribution Date.
"Overcollateralized Amount": With respect to any Distribution Date, the
amount, if any, by which (i) the aggregate Stated Principal Balance of the
Mortgage Loans on the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) exceeds (ii) the sum of the aggregate Certificate
Principal Balances of the Class A Certificates, the Mezzanine Certificates, the
Class B Certificates and the Uncertificated Principal Balance of the Class P
Interest as of such Distribution Date (after giving effect to distributions to
be made on such Distribution Date, other than distributions of the Extra
Principal Distribution Amount, if any).
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"Pass-Through Rate":
With respect to the Class A Certificates (other than the Class III-A1
Certificates), the Mezzanine Certificates and the Class B Certificates for any
Distribution Date, the lesser of (x) the related Formula Rate for such
Distribution Date and (y) the related Net WAC Rate for such Distribution Date.
With respect to the Class III-A1 Certificates for any Distribution Date,
(a) provided a Swap Default has not occurred and is continuing, the related
Formula Rate for such Distribution Date, and (b) if a Swap Default has occurred
and is continuing, the lesser of (x) the related Formula Rate for such
Distribution Date and (y) the related Net WAC Rate for such Distribution Date.
For federal income tax purposes, the Pass-Through Rate of the REMIC regular
interest corresponding to the Class III-A1 Certificate shall, for any
Distribution Date, be the lesser of the Formula Rate for such Distribution Date
and the related Net WAC Rate for such Distribution Date. Amounts (other than
principal) paid on the Class III-A1 Certificate in excess of the related Net WAC
Rate shall be treated as paid outside of any REMIC.
51
For federal income tax purposes, the Pass-Through Rate for any Certificate
(other than the Class C, Class P, and Class R Certificates) will never exceed
the Net WAC Rate for such Certificate, as such Net WAC Rate is determined for
federal income tax purposes. Amounts (other than principal) paid on the
Certificates (other than the Class C, Class P, and Class R Certificates) in
excess of the Net WAC Rate as determined for federal income tax purposes shall
be treated as paid outside of any REMIC.
With respect to the Class C Interest and any Distribution Date, a per annum
rate equal to the percentage equivalent of a fraction, the numerator of which is
the sum of the amounts calculated pursuant to clauses (A) through (Y) below, and
the denominator of which is the aggregate of the Uncertificated Principal
Balances of REMIC 3 Regular Interests AA, IA1, IA2, IIA1, IIA2, IIIA1, IIIA1A,
IIIA2, IIIA3, IIIA4, X0, X0, X0, X0, X0, X0, X0, X0, M9, M10, B1, B2, B3, ZZ and
P. For purposes of calculating the Pass-Through Rate for the Class C Interest,
the numerator is equal to the sum of the following components:
(A) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest AA minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest AA;
(B) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IA1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IA1;
(C) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IA2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IA2;
(D) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IIA1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IIA1;
(E) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IIA2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IIA2;
(F) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IIIA1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IIIA1;
(G) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IIIA1A minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IIIA1A;
(H) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IIIA2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IIIA2;
52
(I) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IIIA3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IIIA3;
(J) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest IIIA4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest IIIA4;
(K) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M1;
(L) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M2;
(M) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M3;
(N) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M4;
(O) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M5 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M5;
(P) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M6 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M6;
(Q) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M7 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M7;
(R) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M8 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M8;
(S) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M9 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M9;
(T) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest M10 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest M10;
53
(U) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest B1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest B1;
(V) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest B2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest B2;
(W) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest B3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest B3;
(X) the Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular
Interest ZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 3 Regular Interest ZZ; and
(Y) 100% of the interest on REMIC 3 Regular Interest P.
The Class C Certificates will not have a Pass-Through Rate, but will
be entitled to 100% of the distributions on the Class C Interest.
With respect to the Class Swap IO Interest and any Distribution Date, a per
annum rate equal to the Swap Fee Rate. However, for federal income tax purposes
and under the REMIC Provisions, the Class Swap IO Interest will not have a
Pass-Through Rate, but will be entitled to 100% of the interest paid by REMIC 3
Regular Interest Swap IO. The Class Swap IO Certificates will not have a
Pass-Through Rate but will be entitled to 100% of the interest paid on the Class
Swap IO Interest.
With respect to the Class FMR IO Interest and any Distribution Date, a per
annum rate equal to the Final Maturity Rate. However, for federal income tax
purposes and under the REMIC Provisions, the Class FMR IO Interest will not have
a Pass-Through Rate, but will be entitled to 100% of the interest paid by REMIC
3 Regular Interest FMR IO.
"Percentage Interest": With respect to any Certificate (other than a
Residual Certificate), a fraction, expressed as a percentage, the numerator of
which is the Initial Certificate Principal Balance or Initial Notional Amount
represented by such Certificate and the denominator of which is the Original
Class Certificate Principal Balance or Original Class Notional Amount of the
related Class. With respect to a Residual Certificate, the portion of the Class
evidenced thereby, expressed as a percentage, as stated on the face of such
Certificate; provided, however, with respect to each Class referred to in this
paragraph, that the sum of all such percentages for each such Class totals 100%.
"Periodic Rate Cap": With respect to each Adjustable Rate Mortgage Loan and
any Adjustment Date therefor, the fixed percentage set forth in the related
Mortgage Note, which is the maximum amount by which the Mortgage Rate for such
Mortgage Loan may increase or decrease (without regard to the Maximum Mortgage
Rate or the Minimum Mortgage Rate) on such Adjustment Date from the Mortgage
Rate in effect immediately prior to such Adjustment Date.
54
"Permitted Investments": Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued or managed by the Depositor, the Master Servicer, the NIMS
Insurer, the Trustee or any of their respective Affiliates or for which an
Affiliate of the NIMS Insurer or the Trustee serves as an advisor:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by or federal funds sold by any depository
institution or trust company (including the Trustee or its agents
acting in their commercial capacities) incorporated under the laws of
the United States of America or any state thereof and subject to
supervision and examination by federal and/or state authorities, so
long as, at the time of such investment or contractual commitment
providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the
principal depository institution in a depository institution holding
company, debt obligations of the depository institution holding
company) or its ultimate parent has a short-term uninsured debt rating
in the highest available rating category of Fitch, Xxxxx'x and S&P and
provided that each such investment has an original maturity of no more
than 365 days; and provided further that, if the only Rating Agency is
S&P and if the depository or trust company is a principal subsidiary
of a bank holding company and the debt obligations of such subsidiary
are not separately rated, the applicable rating shall be that of the
bank holding company; and, provided further that, if the original
maturity of such short-term obligations of a domestic branch of a
foreign depository institution or trust company shall exceed 30 days,
the short-term rating of such institution shall be A-1+ in the case of
S&P if S&P is the Rating Agency; and (B) any other demand or time
deposit or deposit which is fully insured by the FDIC;
(iii) 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
principal) rated F-1+ or higher by Fitch, rated A-1+ by S&P and rated
A2 or higher by Xxxxx'x;
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United
States of America or any State thereof and that are rated by each
Rating Agency in its highest long-term unsecured rating category at
the time of such investment or contractual commitment providing for
such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date of
acquisition thereof) that is rated by each Rating Agency in its
highest short-term unsecured debt rating available at the time of such
investment;
55
(vi) units of taxable 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),
which funds have the highest rating available for such securities from
the Rating Agencies or which have been designated in writing by the
Rating Agencies as Permitted Investments; and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to the Rating Agencies in
writing as a permitted investment of funds backing securities having
ratings equivalent to its highest initial rating of the Class A
Certificates;
provided, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations.
The Trustee or its Affiliates are permitted to receive additional
compensation (such compensation shall not be an expense of the Trust or
constitute an Extraordinary Trust Fund Expense) that could be deemed to be in
the Trustee's economic self-interest for (i) serving as investment adviser,
administrator, shareholder servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments.
"Permitted Transferee": Any transferee of a Residual Certificate other than
a Disqualified Organization or a non-U.S. Person.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": Any employee benefit plan or certain other retirement plans and
arrangements, including individual retirement accounts and annuities, Xxxxx
plans and bank collective investment funds and insurance company general or
separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA or Section 4975 of the Code.
"PMI Insurer": None of the Mortgage Loans are insured by a primary mortgage
insurance policy. References to the PMI Insurer, PMI Insurer Fee, PMI Insurer
Fee Rate, PMI Mortgage Loans and PMI Policy are left in this Agreement for
administrative convenience and shall be completely disregarded. There are no PMI
Mortgage Loans or any PMI Insurer under this Agreement and no Person shall have
any rights of the PMI Insurer under this Agreement.
"PMI Insurer Fee": The amount payable to the PMI Insurer on each
Distribution Date, which amount shall equal one twelfth of the product of (i)
the PMI Insurer Fee Rate, multiplied by (ii) the aggregate Stated Principal
Balance of the PMI Mortgage Loans and any related REO
56
Properties as of the first day of the related Due Period plus any applicable
premium taxes on the PMI Mortgage Loans located in the States of West Virginia
and Kentucky.
"PMI Insurer Fee Rate": 0.00% per annum.
"PMI Mortgage Loans": The Mortgage Loans insured by the PMI Insurer set
forth on the list of Mortgage Loans attached hereto as Schedule IV. There are no
PMI Mortgage Loans under this Agreement.
"PMI Policy": Not applicable.
"Preference Claim": As defined in Section 4.02 hereof.
"Prepayment Assumption": The pricing prepayment assumption as described in
the Prospectus Supplement.
"Prepayment Charge": With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of such
Mortgage Loan in accordance with the terms thereof (other than any Master
Servicer Prepayment Charge Payment Amount).
"Prepayment Charge Schedule": As of the Cut-off Date, a list attached
hereto as Schedule I (including the Prepayment Charge Summary attached thereto),
setting forth the following information with respect to each Prepayment Charge:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination of the related Mortgage Loan;
(iv) the date on which the first monthly payment was due on the
related Mortgage Loan;
(v) the term of the related Prepayment Charge; and
(vi) the principal balance of the related Mortgage Loan as of the
Cut-off Date.
The Prepayment Charge Schedule shall be amended from time to time by the
Master Servicer in accordance with the provisions of this Agreement and a copy
of each related amendment shall be furnished by the Master Servicer to the NIMS
Insurer and the Trustee.
"Prepayment Interest Excess": With respect to any Distribution Date, for
each Mortgage Loan for which a Principal Prepayment in full is applied on or
after the first calendar day of the month of such Distribution Date and before
the 15th calendar day of such month, the amount of interest collected on such
Principal Prepayment in full at the applicable Net Mortgage Rate from the first
day of the month in which such Distribution Date occurs through the day on which
such Principal Prepayment is applied.
57
"Prepayment Interest Shortfall": With respect to any Distribution Date, for
each Mortgage Loan that was during the related Prepayment Period the subject of
a Principal Prepayment in full or in part that was applied by the Master
Servicer to reduce the outstanding principal balance of such loan on a date
preceding the Due Date in the month in which such Distribution Date occurs, an
amount equal to interest at the applicable Net Mortgage Rate on the amount of
such Principal Prepayment for the lesser of (i) the number of days commencing on
the date on which the prepayment is applied and ending on the last day of the
month in which such Principal Prepayment is applied and (ii) 30 days. The
obligations of the Master Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 3.24. For avoidance of doubt, no Prepayment
Interest Shortfalls shall exist with respect to Principal Prepayments in full
which are applied during the period from the first through the 14th day of the
month of the related Distribution Date.
"Prepayment Period": With respect to any Distribution Date, (i) the period
from the 15th day of the month immediately preceding the month in which such
Distribution Date occurs (or in the case of the first Distribution Date, the
Cut-off Date) through the 14th day of the month in which such Distribution Date
occurs, inclusive, for purposes of Principal Prepayments in full; and (ii) the
calendar month immediately preceding the calendar month in which such
Distribution Date occurs, for any other purpose. Except for purposes of
calculating Prepayment Interest Excess, Principal Prepayments made during the
calendar month immediately preceding the Cut-off Date and received by the Master
Servicer shall be deemed to be received after the Cut-off Date and during the
Prepayment Period related to the first Distribution Date.
"Prime Rate": The prime rate of United States money center commercial banks
as published in The Wall Street Journal.
"Principal Balance": As to any Mortgage Loan other than a Liquidated
Mortgage Loan, and any day, the related Cut-off Date Principal Balance, minus
all collections credited against the Cut-off Date Principal Balance of any such
Mortgage Loan. For purposes of this definition, a Liquidated Mortgage Loan shall
be deemed to have a Principal Balance equal to the Principal Balance of the
related Mortgage Loan as of the final recovery of related Liquidation Proceeds
and a Principal Balance of zero thereafter. As to any REO Property and any day,
the Principal Balance of the related Mortgage Loan shall equal the Principal
Balance of the related Mortgage Loan immediately prior to such Mortgage Loan
becoming REO Property minus any REO Principal Amortization received with respect
thereto on or prior to such day.
"Principal Distribution Amount": With respect to any Distribution Date, the
sum of the Group I Principal Distribution Amount, the Group II Principal
Distribution Amount and the Group III Principal Distribution Amount.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any Due Date in any month or months subsequent to the
month of prepayment.
"Principal Remittance Amount": With respect to any Distribution Date, the
sum of the Group I Principal Remittance Amount, the Group II Principal
Remittance Amount and the Group III Principal Remittance Amount.
58
"Prospectus Supplement": That certain Prospectus Supplement dated August
25, 2005 relating to the public offering of the Class A Certificates and the
Mezzanine Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 9.01, and as confirmed by an Officers' Certificate from the Master
Servicer to the Trustee, an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof as of the date of purchase (or such other price as
provided in Section 9.01), (ii) in the case of (x) a Mortgage Loan, accrued
interest on such Stated Principal Balance at the applicable Net Mortgage Rate in
effect from time to time from the Due Date as to which interest was last paid by
the Mortgagor or by an advance by the Master Servicer through the end of the
calendar month in which the purchase is to be effected and (y) an REO Property,
the sum of (1) accrued interest on such Stated Principal Balance at the
applicable Net Mortgage Rate in effect from time to time from the Due Date as to
which interest was last paid by the Mortgagor or by an advance by the Master
Servicer through the end of the calendar month immediately preceding the
calendar month in which such REO Property was acquired, plus (2) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the total of all
net rental income, Insurance Proceeds, Liquidation Proceeds and Advances that as
of the date of purchase had been distributed in respect of REO Imputed Interest
pursuant to Section 4.01, (iii) any unreimbursed Servicing Advances, Advances
and Nonrecoverable Advances and any unpaid Servicing Fees allocable to such
Mortgage Loan or REO Property, (iv) any amounts previously withdrawn from the
Collection Account in respect of such Mortgage Loan or REO Property pursuant to
Section 3.11 (a)(ix) and Section 3.16(b), (v) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03, enforcement expenses
reasonably incurred or to be incurred by the NIMS Insurer, the Master Servicer
or the Trustee in respect of the breach or defect giving rise to the purchase
obligation and (vi) in the case of a Mortgage Loan required to be repurchased
pursuant to Section 2.03 because such Mortgage Loan is in breach of the
representation in Section 6(xlvi) or in Section 6(lxi) of the Mortgage Loan
Purchase Agreement, any additional costs or damages in excess of the amounts to
be paid pursuant to clauses (i) through (v) above (including attorney's fees)
incurred by the Trust as a result of the Trust's status as an assignee or
purchaser of such Mortgage Loans.
Notwithstanding the foregoing, if an amount of Mortgage Loans (measured by
the aggregate principal balance) that is in excess of 2.00% of the aggregate
principal balance of the Closing Date Mortgage Loans as of the Cut-Off Date has
previously been repurchased (exclusive of any Mortgage Loans purchased by the
Holder of the Class C Certificates, the Master Servicer or the NIMS Insurer
pursuant to Section 3.16(c)) or substituted for, then in addition to those
requirements set forth above, the Purchase Price shall include the amount of any
related Prepayment Charge (other than with respect to a Purchase Price paid in
connection with Section 9.01).
"Qualified Substitute Mortgage Loan": A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the terms of this Agreement or the Mortgage
Loan Purchase Agreement which must, on the date of such substitution, (i) have
an outstanding principal balance (or in the case of a substitution of more than
one mortgage loan for a Deleted Mortgage Loan, an aggregate principal balance),
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of, and not more than
59
5.00% less than, the outstanding principal balance of the Deleted Mortgage Loan
as of the Due Date in the calendar month during which the substitution occurs,
(ii) have a Mortgage Rate not less than (and not more than one percentage point
in excess of) the Mortgage Rate of the Deleted Mortgage Loan, (iii) if the
Qualified Substitute Mortgage Loan is an Adjustable Rate Mortgage Loan, have a
Maximum Mortgage Rate not greater than the Maximum Mortgage Rate on the Deleted
Mortgage Loan and have a Minimum Mortgage Rate not less than the Minimum
Mortgage Rate of the Deleted Mortgage Loan, (iv) if the Qualified Substitute
Mortgage Loan is an Adjustable Rate Mortgage Loan, have a Gross Margin equal to
or greater than the Gross Margin of the Deleted Mortgage Loan, (v) if the
Qualified Substitute Mortgage Loan is an Adjustable Rate Mortgage Loan, have a
next Adjustment Date not more than two months later than the next Adjustment
Date on the Deleted Mortgage Loan, (vi) have a remaining term to maturity not
greater than (and not more than one year less than) that of the Deleted Mortgage
Loan, (vii) be current (with no contractual delinquencies outstanding) as of the
date of substitution, (viii) have a Loan-to-Value Ratio as of the date of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (ix) have a risk grading determined by the Seller
at least equal to the risk grading assigned on the Deleted Mortgage Loan, (x)
have been underwritten or reunderwritten by the Seller in accordance with the
same or, as determined by the Seller, more favorable, underwriting guidelines as
the Deleted Mortgage Loan, (xi) with respect to Qualified Substitute Mortgage
Loans substituted for Deleted Mortgage Loans that are Group I Mortgage Loans or
Group II Mortgage Loans, have had an original Principal Balance that conformed
to Xxxxxx Xxx and Xxxxxxx Mac loan limits as of the date of its origination,
(xii) be secured by the same property type as the Deleted Mortgage Loan, (xiii)
have a lien priority equal to or superior to that of the Deleted Mortgage Loan,
(xiv) be covered by the PMI Policy if the Deleted Mortgage Loan was covered by
the PMI Policy, and (xv) conform to each representation and warranty set forth
in Section 6 of the Mortgage Loan Purchase Agreement applicable to the Deleted
Mortgage Loan. In the event that one or more mortgage loans are substituted for
one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the basis of aggregate principal balances (applied
separately for the Group I Mortgage Loans, Group II Mortgage Loans and Group III
Mortgage Loans), the Mortgage Rates described in clauses (ii) through (v) hereof
shall be satisfied for each such mortgage loan, the risk gradings described in
clause (ix) hereof shall be satisfied as to each such mortgage loan, the terms
described in clause (vi) hereof shall be determined on the basis of weighted
average remaining term to maturity (provided that no such mortgage loan may have
a remaining term to maturity longer than the Deleted Mortgage Loan), the
Loan-to-Value Ratios described in clause (viii) hereof shall be satisfied as to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xv) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
Notwithstanding the foregoing, if an amount of Mortgage Loans (measured by
the aggregate principal balance) that is in excess of 2.00% of the aggregate
principal balance of the Closing Date Mortgage Loans as of the Cut-Off Date has
previously been repurchased (exclusive of any Mortgage Loans purchased by the
Holder of the Class C Certificates, the Master Servicer or the NIMS Insurer
pursuant to Section 3.16(c)) or substituted for, then in addition to clauses (i)
through (xiv) above, each Qualified Substitute Mortgage Loan shall also have a
Prepayment Charge provision at least as favorable to the Holders of the Class P
Certificates as the Prepayment Charge provisions in the Deleted Mortgage Loan.
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"Rating Agency or Rating Agencies": Fitch, Xxxxx'x and S&P or their
successors. If such agencies or their successors are no longer in existence,
"Rating Agencies" shall be such nationally recognized statistical rating
agencies, or other comparable Persons, designated by the Depositor, notice of
which designation shall be given to the Trustee and the Master Servicer.
"Realized Loss": With respect to any Liquidated Mortgage Loan, the amount
of loss realized equal to the portion of the Principal Balance remaining unpaid
after application of all Net Liquidation Proceeds and Insurance Proceeds in
respect of such Mortgage Loan.
"Record Date": With respect to (i) the Class C Certificates, the Class P
Certificates, the Residual Certificates and any Definitive Certificates, the
Close of Business on the last Business Day of the calendar month preceding the
month in which the related Distribution Date occurs and (ii) with respect to the
Class A Certificates, the Mezzanine Certificates and the Class B Certificates,
the Close of Business on the Business Day immediately preceding the related
Distribution Date; provided, however, that following the date on which
Definitive Certificates for a Class A Certificate, a Mezzanine Certificate or a
Class B Certificate are available pursuant to Section 5.02, the Record Date for
such Certificates shall be the last Business Day of the calendar month preceding
the month in which the related Distribution Date occurs.
"Recording Documents": As defined in Section 2.01 hereof.
"Reference Banks": Those banks (i) with an established place of business in
London, England, (ii) not controlling, under the control of or under common
control with the Depositor, the Seller or the Master Servicer or any affiliate
thereof and (iii) which have been designated as such by the Trustee with the
consent of the NIMS Insurer; provided, however, that if fewer than two of such
banks provide a LIBOR rate, then any leading banks selected by the Trustee with
the consent of the NIMS Insurer which are engaged in transactions in United
States dollar deposits in the international Eurocurrency market.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
"Regular Certificates": The Class A Certificates, the Mezzanine
Certificates, the Class B Certificates, the Class C Certificates and the Class P
Certificates.
"Relief Act": The Servicemembers' Civil Relief Act of 2003.
"Relief Act Interest Shortfall": With respect to any Distribution Date, for
any Mortgage Loan with respect to which there has been a reduction in the amount
of interest collectible thereon for the most recently ended Due Period as a
result of the application of the Relief Act, the amount by which (i) interest
collectible on such Mortgage Loan during such Due Period is less than (ii) one
month's interest on the Principal Balance of such Mortgage Loan at the Mortgage
Rate for such Mortgage Loan before giving effect to the application of the
Relief Act.
"Remaining Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the Principal Distribution Amount remaining after the
distributions set forth in Section 4.01(c)(i) and (ii).
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"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC 1": The segregated pool of assets subject hereto, constituting a
primary trust created hereby and to be administered hereunder, with respect to
which a REMIC election is to be made consisting of: (i) such Mortgage Loans as
from time to time are subject to this Agreement, together with the Mortgage
Files relating thereto, and together with all collections thereon and proceeds
thereof, (ii) any REO Property, together with all collections thereon and
proceeds thereof, (iii) the Trustee's rights with respect to the Mortgage Loans
under all insurance policies, including the PMI Policy, required to be
maintained pursuant to this Agreement and any proceeds thereof, (iv) the
Depositor's rights with respect to the Mortgage Loans under the Mortgage Loan
Purchase Agreement (including any security interest created thereby), and (v)
the Collection Account, the Distribution Account (subject to the last sentence
of this definition) and any REO Account and such assets that are deposited
therein from time to time and any investments thereof, together with any and all
income, proceeds and payments with respect thereto. Notwithstanding the
foregoing, however, a REMIC election will not be made with respect to the
Reserve Fund, the Supplemental Interest Account, the Final Maturity Reserve
Account and the Master Servicer Prepayment Charge Payment Amounts.
"REMIC 1 Regular Interest A": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest A shall accrue interest at
the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest G1-A": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest G1-A shall accrue interest
at the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest G1-B": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest G1-B shall accrue interest
at the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest G2-A": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest G2-A shall accrue interest
at the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
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"REMIC 1 Regular Interest G2-B": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest G2-B shall accrue interest
at the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest G3-A": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest G3-A shall accrue interest
at the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest G3-B": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest G3-B shall accrue interest
at the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest P": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest P shall accrue interest at
the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interests": REMIC 1 Regular Interests AG1-A, G1-B, G2-A,
G2-B, G3-A, G3-B and P.
"REMIC 2": The segregated pool of assets consisting of all of the REMIC 1
Regular Interests conveyed in trust to the Trustee, for the benefit of REMIC 3,
as holder of the REMIC 2 Regular Interests and the Class R Certificateholders,
as holders of the Class R-2 Interest, pursuant to Article II hereunder, and all
amounts deposited therein, with respect to which a separate REMIC election is to
be made.
"REMIC 2 Regular Interest A": One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest A shall accrue interest at
the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 2 Regular Interest FMR IO": One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest FMR IO shall accrue
interest at the related Uncertificated
63
REMIC 2 Pass-Through Rate in effect from time to time, but shall not be entitled
to distributions of principal.
"REMIC 2 Regular Interest G1-SR": One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest G1-SR shall accrue
interest at the related Uncertificated REMIC 2 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 2 Regular Interest G2-SR": One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest G2-SR shall accrue
interest at the related Uncertificated REMIC 2 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 2 Regular Interest G3-SR": One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest G3-SR shall accrue
interest at the related Uncertificated REMIC 2 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 2 Regular Interest SUB-A": One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest SUB-A shall accrue
interest at the related Uncertificated REMIC 2 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 2 Regular Interest Swap": One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest Swap shall accrue interest
at the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 2 Regular Interests": REMIC 2 Regular Interest A, G1-SR, G2-SR,
G3-SR, SUB A, Swap, FMR IO, and P.
"REMIC 3": The segregated pool of assets consisting of all of the REMIC 2
Regular Interests conveyed in trust to the Trustee, for the benefit of REMIC 4,
as holder of the REMIC 3 Regular Interests and the Class R Certificateholders,
as holders of the Class R-3 Interest, pursuant to Article II hereunder, and all
amounts deposited therein, with respect to which a separate REMIC election is to
be made.
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"REMIC 3 Interest Loss Allocation Amount": With respect to any Distribution
Date, an amount equal to (a) the product of (i) 50% of the aggregate Principal
Balance of the Mortgage Loans and related REO Properties then outstanding and
(ii) the Uncertificated REMIC 2 Pass-Through Rate for REMIC 3 Regular Interest
LT1-AA minus the Marker Rate, divided by (b) 12.
"REMIC 3 Overcollateralization Target Amount": 0.50% of the
Overcollateralization Target Amount.
"REMIC 3 Overcollateralized Amount": With respect to any date of
determination, (i) 0.50% of the aggregate Uncertificated Principal Balances of
the REMIC 3 Regular Interest AA, REMIC 3 Regular Interest IA1, REMIC 3 Regular
Xxxxxxxx XX0, REMIC 3 Regular Interest IIA1, REMIC 3 Regular Interest IIA2,
REMIC 3 Regular Interest IIIA1, REMIC 3 Regular Interest IIIA1A, REMIC 3 Regular
Interest IIIA2, REMIC 3 Regular Interest IIIA3, REMIC 3 Regular Interest IIIA4,
REMIC 3 Regular Interest M1, REMIC 3 Regular Interest M2, REMIC 3 Regular
Interest M3, REMIC 3 Regular Interest M4, REMIC 3 Regular Interest M5, REMIC 3
Regular Interest M6, REMIC 3 Regular Interest M7, REMIC 3 Regular Interest M8,
REMIC 3 Regular Interest M9, REMIC 3 Regular Interest M10, REMIC 3 Regular
Interest B1, REMIC 3 Regular Interest B2, REMIC 3 Regular Interest B3, REMIC 3
Regular Interest ZZ and REMIC 3 Regular Interest P minus (ii) the aggregate of
the Uncertificated Principal Balances of REMIC 3 Regular Interest IA1, REMIC 3
Regular Xxxxxxxx XX0, REMIC 3 Regular Interest IIA1, REMIC 3 Regular Interest
IIA2, REMIC 3 Regular Interest IIIA1, REMIC 3 Regular Interest IIIA1A, REMIC 3
Regular Interest IIIA2, REMIC 3 Regular Interest IIIA3, REMIC 3 Regular Interest
IIIA4, REMIC 3 Regular Interest M1, REMIC 3 Regular Interest M2, REMIC 3 Regular
Interest M3, REMIC 3 Regular Interest M4, REMIC 3 Regular Interest M5, REMIC 3
Regular Interest M6, REMIC 3 Regular Interest M7, REMIC 3 Regular Interest M8,
REMIC 3 Regular Interest M9, REMIC 3 Regular Interest M10, REMIC 3 Regular
Interest B1, REMIC 3 Regular Interest B2, REMIC 3 Regular Interest B3 and REMIC
3 Regular Interest P, in each case as of such date of determination.
"REMIC 3 Principal Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to the product of (i) 0.50% of the aggregate
Principal Balance of the Mortgage Loans and REO Properties then outstanding and
(ii) 1 minus a fraction, the numerator of which is 2 times the aggregate of the
Uncertificated Principal Balances of REMIC 3 Regular Xxxxxxxx XX0, XX0, IIA1,
IIA2, IIIA1, IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0, X0, X0, X0, X0, X0,
M10, B1, B2 and B3 and the denominator of which is the aggregate of the
Uncertificated Principal Balances of REMIC 3 Regular Xxxxxxxxx XX0, XX0, IIA1,
IIA2, IIIA1, IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0, X0, X0, X0, X0, X0,
M10, B1, B2, B3 and ZZ.
"REMIC 3 Regular Interest 1GRP": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest 1GRP shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest 2GRP": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest 2GRP shall accrue interest
at the related Uncertificated
65
REMIC 3 Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
"REMIC 3 Regular Interest 3GRP": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest 3GRP shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest IA1": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Xxxxxxxx XX0 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest IA2": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Xxxxxxxx XX0 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest IIA1": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest IIA1 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest IIA2": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest IIA2 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest IIIA1": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest IIIA1 shall accrue
interest at the related Uncertificated REMIC 3 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest IIIA1A": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in
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REMIC 3. REMIC 3 Regular Interest IIIA1A shall accrue interest at the related
Uncertificated REMIC 3 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 3 Regular Interest IIIA2": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest IIIA2 shall accrue
interest at the related Uncertificated REMIC 3 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest IIIA3": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest IIIA3 shall accrue
interest at the related Uncertificated REMIC 3 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest IIIA4": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest IIIA4 shall accrue
interest at the related Uncertificated REMIC 3 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest AA": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest AA shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest B1": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest B1 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest B2": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest B2 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
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"REMIC 3 Regular Interest B3": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest B3 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest FMR IO": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest FMR IO shall accrue
interest at the related Uncertificated REMIC 3 Pass-Through Rate in effect from
time to time, but shall not be entitled to distributions of principal.
"REMIC 3 Regular Interest M1": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M1 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest M2": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M2 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest M3": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M3 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest M4": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M4 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest M5": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M5 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
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"REMIC 3 Regular Interest M6": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M6 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest M7": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M7 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest M8": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M8 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest M9": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M9 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest M10": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest M10 shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest SUB GRP": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest SUB GRP shall accrue
interest at the related Uncertificated REMIC 3 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest Swap IO": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest Swap IO shall accrue
interest at the related Uncertificated REMIC 3 Pass-Through Rate in effect from
time to time, but shall not be entitled to distributions of principal.
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"REMIC 3 Regular Interest P": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest P shall accrue interest at
the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to any Prepayment Charges relating to the Mortgage
Loans collected by the Master Servicer and to a distribution of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
"REMIC 3 Regular Interest XX": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest XX shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interest ZZ": One of the separate non-certificated
beneficial ownership interests in REMIC 3 issued hereunder and designated as a
Regular Interest in REMIC 3. REMIC 3 Regular Interest ZZ shall accrue interest
at the related Uncertificated REMIC 3 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 3 Regular Interests": REMIC 3 Regular Xxxxxxxxx XX, XX0, XXX0, XXX0,
XXXX0, IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0, X0, X0, X0, X0, X0, M10, B1,
B2, B3, ZZ, P, 1GRP, 2GRP, SUB A, 3GRP, XX, Swap IO, and FMR IO.
"REMIC 4": The segregated pool of assets consisting of all of the REMIC 3
Regular Interests conveyed in trust to the Trustee, for the benefit of the
Holders of the Regular Certificates (other than the Class C Certificates and the
Class P Certificates), REMIC CX, as the holder of the Class C Interest, REMIC
PX, as the holder of the Class P Interest, REMIC SWAPX as holder of the Class
Swap IO Interest, and the Class R Certificateholders, as holders of the Class
R-4 Interest, pursuant to Article II hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be made.
"REMIC 4 Regular Interests": The Class C Interest, the Class P Interest,
the Class Swap IO Interest, and the Class FM Reserve IO Interest.
"REMIC CX": The segregated pool of assets consisting of the Class C
Interest, conveyed in trust to the Trustee, for the benefit of the Holders of
the Class C Certificates and the Class R-CX Certificates, pursuant to Article II
hereunder, and all amounts deposited therein, with respect to which a separate
REMIC election is to be made.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
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"REMIC PX": The segregated pool of assets consisting of the Class P
Interest, conveyed in trust to the Trustee, for the benefit of the Holders of
the Class P Certificates and the Class R-PX Certificates, pursuant to Article II
hereunder, and all amounts deposited therein, with respect to which a separate
REMIC election is to be made.
"REMIC Regular Interests": The REMIC 1 Regular Interests, the REMIC 2
Regular Interests, the REMIC 3 Regular Interests and the REMIC 4 Regular
Interests.
"REMIC SwapX": The segregated pool of assets consisting of the Class Swap
IO Interest, conveyed in trust to the Trustee, for the benefit of the Holders of
the Class Swap IO Certificates and the Class R-SwapX Certificates, pursuant to
Article II hereunder, and all amounts deposited therein, with respect to which a
separate REMIC election is to be made.
"Remittance": As defined in Section 7.02(b) hereof.
"Remittance Report": A report prepared by the Master Servicer and delivered
to the NIMS Insurer and the Trustee pursuant to Section 4.04.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code.
"REO Account": The account or accounts maintained by the Master Servicer in
respect of an REO Property pursuant to Section 3.23.
"REO Disposition": The sale or other disposition of an REO Property on
behalf of the Trust Fund.
"REO Imputed Interest": As to any REO Property, for any calendar month
during which such REO Property was at any time part of the Trust Fund, one
month's interest at the applicable Net Mortgage Rate on the Principal Balance of
such REO Property (or, in the case of the first such calendar month, of the
related Mortgage Loan if appropriate) as of the Close of Business on the
Distribution Date in such calendar month.
"REO Principal Amortization": With respect to any REO Property, for any
calendar month, the excess, if any, of (a) the aggregate of all amounts received
in respect of such REO Property during such calendar month, whether in the form
of rental income, sale proceeds (including, without limitation, that portion of
the Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 9.01 that is allocable to such REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.23 in respect of the proper operation, management and maintenance
of such REO Property or (ii) payable or reimbursable to the Master Servicer
pursuant to Section 3.23 for unpaid Servicing Fees in respect of the related
Mortgage Loan and unreimbursed Servicing Advances and Advances in respect of
such REO Property or the related Mortgage Loan, over (b) the REO Imputed
Interest in respect of such REO Property for such calendar month.
"REO Property": A Mortgaged Property acquired by the Master Servicer on
behalf of the Trust Fund through foreclosure or deed-in-lieu of foreclosure, as
described in Section 3.23.
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"Request for Release": A release signed by a Servicing Representative, in
the form of Exhibit E-1 or E-2 attached hereto.
"Reserve Fund": The reserve fund established pursuant to Section 3.26.
"Reserve Interest Rate": With respect to any Interest Determination Date,
the rate per annum that the Trustee determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of 0.03125%) of
the one-month United States dollar lending rates which banks in New York City
selected by the Trustee with the consent of the NIMS Insurer are quoting on the
relevant Interest Determination Date to the principal London offices of leading
banks in the London interbank market or (ii) in the event that the Trustee can
determine no such arithmetic mean, in the case of any Interest Determination
Date after the initial Interest Determination Date, the lowest one-month United
States dollar lending rate which such New York banks selected by the Trustee
with the consent of the NIMS Insurer are quoting on such Interest Determination
Date to leading European banks.
"Residential Dwelling": Any one of the following: (i) a detached one-family
dwelling, (ii) a detached two- to four-family dwelling, (iii) a one-family
dwelling unit in a Xxxxxx Xxx eligible condominium project or a Xxxxxxx Mac
eligible condominium project, (iv) a manufactured home, or (v) a detached
one-family dwelling in a planned unit development, none of which is a
co-operative or mobile home.
"Residual Certificates": The Class R Certificates, the Class R-CX
Certificates and the Class R-PX Certificates.
"Residual Interest": The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee, any managing
director, director, associate, principal, vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and, with respect to a
particular matter, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"S&P": Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., or
its successor in interest.
"Seller": Long Beach Mortgage Company, a Delaware corporation, or its
successor in interest, in its capacity as seller under the Mortgage Loan
Purchase Agreement.
"Sequential Trigger Event": A Sequential Trigger Event is in effect with
respect to any Distribution Date (i) from the September 2005 Distribution Date
through the August 2008 Distribution Date if the percentage obtained by dividing
(x) the aggregate amount of Realized Losses incurred (less any Subsequent
Recoveries) with respect to the Mortgage Loans from the Cut-off Date through the
last day of the related Due Period by (y) the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date is greater than the percentage set
forth in the following table:
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Distribution Date Occurring in Cumulative Loss Percentage
---------------------------------- ---------------------------------------------
September 2005 through August 2007 1.30%
September 2007 through August 2008 1.30% for the first month, plus an additional
1/12th of the positive difference between
2.85% and 1.35% for each month thereafter.
and (ii) on and after the Distribution Date in September 2008 if a Trigger Event
is in effect.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.09.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and expenses)
incurred by the Master Servicer in the performance of its servicing obligations
in connection with a default, delinquencies or other unanticipated event or
where reimbursement is otherwise permitted in accordance with any of the terms
of this Agreement, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of the Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the REO Property and (iv) compliance with the
obligations under Sections 3.01, 3.09, 3.14, 3.16, and 3.23.
"Servicing Fee": With respect to each Mortgage Loan and for any calendar
month, an amount equal to one month's interest (or in the event of any payment
of interest which accompanies a Principal Prepayment in full made by the
Mortgagor during such calendar month, interest for the number of days covered by
such payment of interest) at the Servicing Fee Rate on the same principal amount
on which interest on such Mortgage Loan accrues for such calendar month. A
portion of such Servicing Fee may be retained by any Sub-Servicer as its
servicing compensation.
"Servicing Fee Rate": 0.50% per annum.
"Servicing Representative": Any officer or employee of the Master Servicer
involved in, or responsible for, the administration and servicing of Mortgage
Loans, whose name and specimen signature appear on a list of servicing
representatives furnished by the Master Servicer to the Trustee and the
Depositor on the Closing Date, as such list may from time to time be amended.
"Startup Day": As defined in Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan: (a) as of
any date of determination up to but not including the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the related Cut-off Date Principal Balance, as shown in
the Mortgage Loan Schedule, minus the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-off Date, to the extent
received from the Mortgagor or advanced by the Master Servicer and distributed
pursuant to Section 4.01 on or before such date of determination, (ii) all
Principal Prepayments
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received after the Cut-off Date, to the extent distributed pursuant to Section
4.01 on or before such date of determination, (iii) all Liquidation Proceeds and
Insurance Proceeds to the extent distributed pursuant to Section 4.01 on or
before such date of determination, and (iv) any Realized Loss incurred with
respect thereto as a result of a Deficient Valuation made during or prior to the
Due Period for the most recent Distribution Date coinciding with or preceding
such date of determination; and (b) as of any date of determination coinciding
with or subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed, zero.
With respect to any REO Property: (a) as of any date of determination up to but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the related
Mortgage Loan as of the date on which such REO Property was acquired on behalf
of the Trust Fund, minus the aggregate amount of REO Principal Amortization in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, zero.
"Stayed Funds": If the Master Servicer is the subject of a proceeding under
the federal Bankruptcy Code and the making of a Remittance (as defined in
Section 7.02(b)) is prohibited by Section 362 of the federal Bankruptcy Code,
funds that are in the custody of the Master Servicer, a trustee in bankruptcy or
a federal bankruptcy court and should have been the subject of such Remittance
absent such prohibition.
"Stepdown Date": The earlier of (a) the later of (i) the Distribution Date
in September 2008 and (ii) the first Distribution Date on which the Credit
Enhancement Percentage (calculated for this purpose only after taking into
account payments of principal on the Mortgage Loans due on the related Due Date
or received during the related Prepayment Period but prior to distribution of
the Principal Distribution Amount in respect of the Certificates then entitled
to distributions of principal on such Distribution Date) is greater than or
equal to 45.10% and (b) the date on which the aggregate Certificate Principal
Balance of the Class A Certificates has been reduced to zero.
"Subordinate Cap Agreement": The interest rate cap agreement consisting of
a 1992 ISDA Master Agreement (Multicurrency Border) and a Schedule dated as of
the Closing Date and a 1994 ISDA Credit Support Annex (Bilateral Form New York
Law) and the related Confirmation thereto, between the Trustee and the Cap
Provider, attached as Exhibit B-4 hereto, as such agreement may be amended and
supplemented in accordance with its terms and any replacement interest rate cap
agreement acceptable to the Trustee.
"Subordinated Net WAC Rate": For any Distribution Date and the Mezzanine
Certificates and the Class B Certificates, a per annum rate equal to the
Uncertificated REMIC 3 Pass-Through Rate for REMIC 3 Regular Interest SUB GRP
for such Distribution Date multiplied by a fraction the numerator of which is 30
and the denominator of which is the actual number of days elapsed in the related
Accrual Period.
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"Sub-Servicer": Any Person with which the Master Servicer has entered into
a Sub-Servicing Agreement and which meets the qualifications of a Sub-Servicer
pursuant to Section 3.02.
"Sub-Servicing Account": An account or accounts established by a
Sub-Servicer which meets the requirements set forth in Section 3.08 and is
otherwise acceptable to the applicable Master Servicer.
"Sub-Servicing Agreement": The written contract between the Master Servicer
and a Sub-Servicer relating to servicing and administration of certain Mortgage
Loans as provided in Section 3.02.
"Subsequent Recoveries": The Gross Subsequent Recoveries net of amounts
payable or reimbursable to the Master Servicer for related (i) Advances, (ii)
Servicing Advances and (iii) Servicing Fees.
"Substitution Adjustments": As defined in Section 2.03(d) hereof.
"Supplemental Final Maturity Reserve Amount": With respect to any
Distribution Date (a) prior to the Distribution Date in August 2022, zero, (b)
on and after the Distribution Date in August 2022 up to and including the
Distribution Date in August 2035, the amount of the Net Monthly Excess Cashflow
for such Distribution Date remaining after the distribution pursuant to Section
4.01(d)(i)(tt) and (c) after the Distribution Date in August 2035, zero.
"Supplemental Interest Account": As defined in Section 4.90(a) hereof.
"Swap Agreement": The swap agreement relating to the Class III-A1
Certificates consisting of a 1992 ISDA Master Agreement (Multicurrency Border)
and a schedule dated as of the Closing Date and a 1994 ISDA Credit Support Annex
(Bilateral Form New York Law) and the related confirmation thereto, between the
Trustee on behalf of the Trust and the Swap Counterparty, attached as Exhibit G
hereto, as such agreement may be amended and supplemented in accordance with its
terms.
"Swap Counterparty Payment": With respect to the Swap Payment Date is an
amount equal to the product of (i) USD-LIBOR-BBA for that Swap Payment Date plus
the Spread (as defined in the Swap Agreement), (ii) the Swap Notional Amount for
that Swap Payment Date and (iii) a fraction, the numerator of which is the
actual number of days elapsed in the related Calculation Period and the
denominator of which is 360, subject to reduction in the circumstances set forth
in the Swap Agreement.
"Swap Counterparty": Credit Suisse First Boston International, or any
successor in interest thereto in accordance with the Swap Agreement.
"Swap Default": The effective designation of an Early Termination Date in
respect of the Swap Agreement following the occurrence of a Swap Event of
Default, a Termination Event with respect to the Swap Agreement or an Additional
Termination Event with respect to the Swap Agreement.
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"Swap Event of Default": An "Event of Default" as such term is defined in
the Swap Agreement.
"Swap Fee Amount": With respect to each Distribution Date, the portion of
the Trust Swap Payment based on the Swap Fee Rate for such Distribution Date.
"Swap Fee Rate": The per annum rate set forth in the Swap Agreement as the
"Party B Spread."
"Swap Notional Amount": With respect to any Swap Payment Date is an amount
equal to the lesser of (i) Certificate Principal Balance of the Class III-A1
Certificates as of the last day of the related Accrual Period and (ii) the
aggregate Stated Principal Balance of the Group III Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) multiplied by the Group III Fraction.
"Swap Payment Date": The date of the related Distribution Date.
"Swap Reimbursement Amount": With respect to any Distribution Date, the
excess, if any, of the Swap Counterparty Payment for such Distribution Date over
an amount equal to the product of (a) the lesser of (1) the Formula Rate for the
Class III-A1 Certificates for the related Accrual Period and (2) the Net WAC
Rate with respect to the Group III Senior Certificates for the related Accrual
Period, (b) the Swap Notional Amount and (c) a fraction, the numerator of which
is the actual number of days elapsed in the related Accrual Period and the
denominator of which is 360.
"Swap Termination Date": The earliest of (i) the Distribution Date on which
the Certificate Principal Balance of the Class III-A1 Certificates is reduced to
zero, (ii) the Distribution Date on which the Terminator purchases all Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to Section
9.01(a) of this Agreement, (iii) the day on which all of the Trust's obligations
under this Agreement expire pursuant to Section 9.01, and (iv) the Distribution
Date in August 2035.
"Swap Termination Payment": Upon the designation of an "Early Termination
Date" as defined in the Swap Agreement, the payment to be made by the Trust to
the Supplemental Interest Account for payment to the Swap Counterparty, or by
the Swap Counterparty to the Supplemental Interest Account for payment to the
Trust, as applicable, pursuant to the terms of the Swap Agreement.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holder of the REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed by the Trustee on behalf of each REMIC, together with any and
all other information reports or returns that may be required to be furnished to
the Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
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"Telerate Page 3750": The display designated as page "3750" on the Dow
Xxxxx Telerate Capital Markets Report (or such other page as may replace page
3750 on that report for the purpose of displaying London interbank offered rates
of major banks).
"Termination Event": As defined in the Swap Agreement.
"Termination Price": As defined in Section 9.01(a) hereof.
"Terminator": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
"Trigger Event": A Trigger Event has occurred with respect to a
Distribution Date if either a Cumulative Loss Trigger Event or a Delinquency
Trigger Event has occurred with respect to such Distribution Date.
"Trust": Long Beach Mortgage Loan Trust 2005-WL2, the trust created
hereunder.
"Trust Fund": All of the assets of the Trust, which is the trust created
hereunder consisting of REMIC 1, REMIC 2, REMIC 3, REMIC CX, REMIC PX, REMIC
SwapX, the Reserve Fund, the Supplemental Interest Account, the Final Maturity
Reserve Account and any Master Servicer Prepayment Charge Payment Amounts and
the Trust's rights under each of the Cap Agreements and the Swap Agreement.
"Trust REMIC": Any of REMIC 1, REMIC 2, REMIC 3, REMIC CX, REMIC PX and
REMIC SwapX.
"Trust Swap Payment": With respect to each Swap Payment Date, an amount
equal to the product of (a) the lesser of (1) the sum of (A) the Formula Rate
for the Class III-A1 Certificates for the related Distribution Date and (B) the
Swap Fee Rate for the related Calculation Period and (2) the Net WAC Rate with
respect to the Group III Senior Certificates for the related Distribution Date,
(b) the Swap Notional Amount and (c) a fraction, the numerator of which is the
actual number of days elapsed in the related Calculation Period and the
denominator of which 360, subject to reduction in the circumstances set forth in
the Swap Agreement.
"Trustee": Deutsche Bank National Trust Company, a national banking
association, or its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": With respect to each Distribution Date, one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (prior to giving
effect to scheduled payments of principal due
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during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period).
"Trustee Fee Rate": 0.00% per annum.
"Uncertificated Accrued Interest": With respect to each REMIC Regular
Interest on each Distribution Date, an amount equal to one month's interest at
the related Uncertificated Pass-Through Rate on the Uncertificated Principal
Balance or Uncertificated Notional Amount of such REMIC Regular Interest. In
each case, Uncertificated Accrued Interest will be reduced by any Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls allocated to such REMIC
Regular Interests pursuant to Section 1.03.
"Uncertificated Pass-Through Rate": The Uncertificated REMIC 1 Pass-Through
Rate, the Uncertificated REMIC 2 Pass-Through Rate and the Uncertificated REMIC
3 Pass-Through Rate.
"Uncertificated Principal Balance": With respect to each REMIC Regular
Interest, the principal amount of such REMIC Regular Interest outstanding as of
any date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of each REMIC
Regular Interest shall be reduced by all distributions of principal made on such
REMIC Regular Interest on such Distribution Date pursuant to Section 4.05 and,
if and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses and increased by Subsequent Recoveries as
provided in Section 4.06, and the Uncertificated Principal Balance of REMIC 2
Regular Interest ZZ shall be increased by interest deferrals as provided in
Section 4.05. The Uncertificated Principal Balance of each REMIC Regular
Interest that has an Uncertificated Principal Balance shall never be less than
zero. Notwithstanding the foregoing, the Uncertificated Principal Balance of (i)
the Class C Interest shall always be equal to (i) the excess, if any, of (A) the
then aggregate Uncertificated Principal Balances of the REMIC 3 Regular
Interests over (B) the sum of the Certificate Principal Balance of the Class A
Certificates, the Mezzanine Certificates, the Class B Certificates and the Class
P Interest minus (ii) the amount, if any, paid to the Class A Certificates on
the first Distribution Date as Extra Principal Distribution Amount.
"Uncertificated REMIC 1 Pass-Through Rate": With respect to REMIC 1 Regular
Interest A and P and any Distribution Date, a per annum rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans,
weighted on the basis of the sum of the Stated Principal Balances of such
Mortgage Loans as of the Due Date preceding the month of such Distribution Date.
With respect to REMIC 1 Regular Interests G1-A and G1-B and any Distribution
Date, a per annum rate equal to the weighted average of the Adjusted Net
Mortgage Rates of the Group I Mortgage Loans, weighted on the basis of the sum
of the Stated Principal Balances of such Group I Mortgage Loans as of the Due
Date preceding the month of such Distribution Date. With respect to REMIC 1
Regular Interests G2-A and G2-B, a per annum rate equal to the weighted average
of the Adjusted Net Mortgage Rates of the Group II Mortgage Loans, weighted on
the basis of the sum of the Stated Principal Balances of such Group I Mortgage
Loans as of the Due Date preceding the month of such Distribution Date. With
respect to REMIC 1 Regular Interests G3-A and G3-B and any Distribution Date, a
per annum rate equal
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to the weighted average of the Adjusted Net Mortgage Rates of the Group III
Mortgage Loans, weighted on the basis of the sum of the Stated Principal
Balances of such Group III Mortgage Loans as of the Due Date preceding the month
of such Distribution Date.
"Uncertificated REMIC 2 Pass-Through Rate": With respect to REMIC 2 Regular
Interests A and P, a per annum rate equal to the weighted average of the excess,
if any, of (i) the Uncertificated REMIC 1 Pass-Through Rates with respect to
REMIC 1 Regular Interests A, G1-A, G1-B, G2-A, G2-B, G3-A, G3-B, and P for such
Distribution Date over (ii) on each Distribution Date starting with the
Distribution Date in September 2012 and ending with the Distribution Date in
August 2035, the Final Maturity Reserve Rate, weighted on the basis of the
Uncertificated Principal Balances of the respective REMIC 1 Regular Interests as
of the Due Date in the month preceding the month of such Distribution Date.
With respect to REMIC 2 Regular Interests G1-SR, a per annum rate equal to
the excess, if any, of the Uncertificated REMIC 1 Pass-Through Rate with respect
to REMIC 1 Regular Interest G1-A for such Distribution Date over, on each
Distribution Date starting with the Distribution Date in September 2012 and
ending with the Distribution Date in August 2035, the Final Maturity Reserve
Rate.
With respect to REMIC 2 Regular Interest G2-SR, a per annum rate equal to
the excess, if any, of the Uncertificated REMIC 1 Pass-Through Rate with respect
to REMIC 1 Regular Interest G2-A for such Distribution Date over, on each
Distribution Date starting with the Distribution Date in September 2012 and
ending with the Distribution Date in August 2035, the Final Maturity Reserve
Rate.
With respect to REMIC 2 Regular Interest G3-SR, a per annum rate equal to
the excess, if any, of the Uncertificated REMIC 1 Pass-Through Rate with respect
to REMIC 1 Regular Interest G3-A for such Distribution Date over, on each
Distribution Date starting with the Distribution Date in September 2012 and
ending with the Distribution Date in August 2035, the Final Maturity Reserve
Rate.
With respect to REMIC 2 Regular Interests SUB-A and Swap, a per annum rate
equal to the weighted average of the excess, if any, of (i) the Uncertificated
REMIC 1 Pass-Through Rates with respect to REMIC 1 Regular Interests X0-X, X0-X,
and G3-B for such Distribution Date over (ii) on each Distribution Date starting
with the Distribution Date in September 2012 and ending with the Distribution
Date in August 2035, the Final Maturity Reserve Rate, weighted on the basis of
the Uncertificated Principal Balances of the respective REMIC 1 Regular
Interests as of the Due Date in the month preceding the month of such
Distribution Date.
With respect to any Distribution Date and REMIC 2 Regular Interest FMR IO,
(i) 0.00% per annum for each Distribution Date starting with the Distribution
Date in September 2005 through the Distribution Date in August 2012, (ii) 0.60%
per annum for each Distribution Date starting with the Distribution Date in
September 2012 through the Distribution Date in August 2035, and (iii) 0.00% per
annum for each Distribution Date thereafter. For federal income tax purposes,
REMIC 2 Regular Interest FMR IO will be entitled to a percentage of the interest
payable on each REMIC 1 Regular Interest, with the percentage equal to (i) on
each Distribution Date starting with the Distribution Date in September 2005
through the Distribution Date in August 2012, the excess of the REMIC 1
Uncertificated Pass-Through Rate of such Regular
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Interest over the REMIC 1 Uncertificated Pass-Through Rate of such Regular
Interest, (ii) on each Distribution Date starting with the Distribution Date in
September 2012 through the Distribution Date in August 2035, the excess of the
REMIC 1 Uncertificated Pass-Through Rate of such Regular Interest over the
difference between the REMIC 1 Uncertificated Pass-Through Rate of such Regular
Interest and 0.60%, and (iii) 0.00% thereafter.
"Uncertificated REMIC 3 Pass-Through Rate": With respect to any
Distribution Date and REMIC 3 Regular Interests AA, IA1, IA2, IIA1, IIA2, IIIA1,
IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0, X0, X0, X0, X0, X0, M10, B1, B2,
B3, ZZ, P, and XX, a per annum rate equal to the weighted average of (x) the
Uncertificated REMIC 2 Pass-Through Rates with respect to REMIC 2 Regular
Interests A, G1-SR, G2-SR, G3-SR, SUB-A, and P for such Distribution Date, and
(y) the excess, if any of (i) the Uncertificated REMIC 2 Pass-Through Rate with
respect to REMIC 2 Regular Interest Swap over (ii) the product of the Swap Fee
Rate and ten, weighted on the basis of the Uncertificated Principal Balances of
the respective REMIC 2 Regular Interests as of the Due Date in the month
preceding the month of such Distribution Date.
With respect to any Distribution Date and REMIC Regular Interest 1GRP, a
per annum rate equal to the Uncertificated REMIC 2 Pass-Through Rate for REMIC 2
Regular Interest G1-SR.
With respect to any Distribution Date and REMIC Regular Interest 2GRP, a
per annum rate equal to the Uncertificated REMIC 2 Pass-Through Rate for REMIC 2
Regular Interest G2-SR.
With respect to any Distribution Date and REMIC Regular Interest 3GRP, a
per annum rate equal to the Uncertificated REMIC 2 Pass-Through Rate for REMIC 2
Regular Interest G3-SR.
With respect to REMIC 3 Regular Interest SUB GRP, a per annum rate equal to
the weighted average of (x) the Uncertificated REMIC 2 Pass-Through Rate with
respect to REMIC 2 Regular Interest SUB-A for such Distribution Date, and (y)
the excess, if any of (i) the Uncertificated REMIC 2 Pass-Through Rate with
respect to REMIC 2 Regular Interest Swap over (ii) the Swap Fee Rate, weighted
on the basis of the Uncertificated Principal Balances of the respective REMIC 2
Regular Interests as of the Due Date in the month preceding the month of such
Distribution Date.
With respect to any Distribution Date and the REMIC 3 Regular Interest Swap
IO, a per annum rate equal to the Swap Fee Rate for such Distribution Date. For
federal income tax purposes, the REMIC 3 Regular Interest Swap IO will be
entitled to a percentage (equal to ten times the Swap Fee Rate for the
Distribution Date) of the interest payable on REMIC 2 Regular Interest Swap IO.
With respect to any Distribution Date and REMIC 3 Regular Interest FMR IO,
(i) 0.00% per annum for each Distribution Date starting with the Distribution
Date in September 2005 through the Distribution Date in August 2012, (ii) 0.50%
per annum for each Distribution Date starting with the Distribution Date in
September 2012 through the Distribution Date in August 2035, and (iii) 0.00% per
annum for each Distribution Date thereafter. For federal income tax
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purposes, REMIC 3 Regular Interest FMR IO will be entitled to 100% of the
interest payable on REMIC 2 Regular Interest FMR IO.
"Undercollateralized Amount": With respect to any Distribution Date, the
amount, if any, by which (i) the sum of the aggregate Certificate Principal
Balances of the Class A Certificates, the Mezzanine Certificates and the Class B
Certificates and the Uncertificated Principal Balance of the Class P Interest as
of such Distribution Date (after giving effect to distributions to be made on
such Distribution Date) exceeds (ii) the aggregate Stated Principal Balance of
the Mortgage Loans on the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period, to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period).
"Uninsured Cause": Any cause of damage to a Mortgaged Property such that
the complete restoration of such property is not fully reimbursable by the
hazard insurance policies required to be maintained pursuant to Section 3.14.
"United States Person" or "U.S. Person": (i) A citizen or resident of the
United States; (ii) a corporation, partnership or other entity classified as a
corporation or partnership for United States federal income tax purposes created
or organized in, or under the laws of, the United States or any political
subdivision thereof (except, in the case of a partnership or entity treated as a
partnership, to the extent provided in regulations) provided that, solely for
purposes of the restrictions on the transfer of the Residual Certificates, no
partnership or other entity treated as a partnership shall be treated as a
United States Person unless all persons that own an interest in such partnership
or other entity, either directly or through any entity that is not a corporation
for United States federal income tax purposes, are required by the applicable
operative agreement to be United States Persons; (iii) an estate the income of
which is subject to United States federal income taxation regardless of its
source, or (iv) a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States Persons have the authority to control all substantial decisions of the
trust or if the trust was in existence on August 20, 1996, was treated as a
United States Person on August 19, 1996, and made a valid election to continue
to be treated as a United States Person. The term "United States" shall have the
meaning set forth in Section 7701 of the Code or successor provisions.
"Unpaid Interest Shortfall Amount": With respect to the Class A
Certificates, the Mezzanine Certificates and the Class B Certificates and (i)
the first Distribution Date, zero, and (ii) any Distribution Date after the
first Distribution Date, the amount, if any, by which (a) the sum of (1) the
Monthly Interest Distributable Amount for such Class of Certificates for the
immediately preceding Distribution Date and (2) the outstanding Unpaid Interest
Shortfall Amount, if any, for such Class of Certificates for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such Class of
Certificates in respect of interest pursuant to clause (a) of this definition on
such preceding Distribution Date, plus interest on the amount of interest due
but not paid on such Class of Certificates on such preceding Distribution Date,
to the extent permitted by law, at the Pass-Through Rate for such Class of
Certificates for the related Accrual Period.
"USD-LIBOR-BBA": As defined in the Swap Agreement in the Annex to the 2000
ISDA Definitions.
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"Value": With respect to any Mortgaged Property, the lesser of (i) the
Origination Value thereof and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan,
provided, however, in the case of a Refinanced Mortgage Loan, such value of the
Mortgaged Property is the Origination Value thereof.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times the Class A
Certificates, the Mezzanine Certificates, the Class B Certificates and the Class
C Certificates shall have 98% of the Voting Rights (allocated among the Holders
of the Class A Certificates, the Mezzanine Certificates, the Class B
Certificates and the Class C Certificates in proportion to the then outstanding
Certificate Principal Balances of their respective Certificates), the Class P
Certificates shall have 1% of the Voting Rights and the Class R Certificates
shall have 1% of the Voting Rights, provided that, if and for so long as the
Class C Certificates and the Class P Certificates are held by one or more
foreign entities and serve as collateral for the NIM Notes, the total combined
voting power of such Classes of Certificates shall not exceed 8.9%. The Voting
Rights allocated to any Class of Certificates (other than the Class P
Certificates and the Class R Certificates) shall be allocated among all Holders
of each such Class in proportion to the outstanding Certificate Principal
Balance of such Certificates and the Voting Rights allocated to the Class P
Certificates and the Class R Certificates shall be allocated among all Holders
of each such Class in proportion to such Holders' respective Percentage
Interest; provided, however, that when none of the Regular Certificates are
outstanding, 100% of the Voting Rights shall be allocated among Holders of the
Class R Certificates in accordance with such Holders' respective Percentage
Interests in the Certificates of such Class. The Class R-CX Certificates and the
Class R-PX Certificates shall not have Voting Rights.
"Washington Mutual Custodian": None of the Mortgage Loans are held by the
Washington Mutual Custodian as custodian. References to the Washington Mutual
Custodian are left in this Agreement for administrative convenience and shall be
completely disregarded. There is no Washington Mutual Custodian under this
Agreement and no Person shall have any rights of the Washington Mutual Custodian
under this Agreement.
Section 1.02 Accounting.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account, such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
Section 1.03 Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of the Monthly Interest
Distributable Amount for the Class A Certificates, the Mezzanine Certificates,
the Class B Certificates and the Class C Interest for any Distribution Date, the
aggregate amount of any Net Prepayment Interest Shortfalls and any Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first to the Class C Interest to the extent
of one month's interest at the then applicable Pass-Through Rate on the Notional
Amount of such Regular Interest, and then among the Class A Certificates, the
Mezzanine Certificates and the Class B Certificates on a pro rata basis based
on, and to the extent of, interest for the related Accrual
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Period at the then applicable respective Pass-Through Rate on the respective
Certificate Principal Balance of each such Certificate.
For purposes of calculating the amount of the Monthly Interest
Distributable Amount for the Class C Certificates for any Distribution Date, the
aggregate amount of any Net Prepayment Interest Shortfalls and any Relief Act
Interest Shortfalls allocated to the Class C Interest pursuant to the paragraph
above shall be allocated among the Class C Certificates on a pro rata basis
based on one month's interest.
For purposes of calculating the amount of Uncertificated Accrued Interest
for the REMIC 1 Regular Interests for any Distribution Date, the aggregate
amount of any Net Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated:
(a) 50% of any Net Prepayment Interest and Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated to AA and ZZ up to an aggregate amount equal to the REMIC 3
Interest Loss Allocation Amount, 98% and 2%, respectively, and thereafter among
XX, XX0, XX0, IIA1, IIA2, IIIA1, IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0,
X0, X0, X0, X0, M9, M10, B1, B2, B3, ZZ and P, pro rata based on, and to the
extent of, one month's interest at the then applicable respective Pass-Through
Rate on the respective Uncertificated Principal Balance of each such REMIC 3
Regular Interest; and
(b) 50% of any Net Prepayment Interest and Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated to REMIC 3 Regular Xxxxxxxx 0XXX, 0XXX, 0XXX, SUB GRP, and
XX, pro rata based on, and to the extent of, one month's interest at the then
applicable respective Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC 3 Regular Interest.
For purposes of calculating the amount of Uncertificated Accrued Interest
for the REMIC 2 Regular Interests for any Distribution Date, the aggregate
amount of any Net Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated among all the REMIC 2 Regular Interests (other than REMIC 2
Regular Interests FMR IO and P) pro rata based on, and to the extent of, one
month's interest at the then applicable respective Pass-Through Rate on the
respective Uncertificated Principal Balance of each such REMIC 3 Regular
Interest.
For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC 1 Regular Interests for any Distribution Date, the
aggregate amount of any Net Prepayment Interest Shortfalls and Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated among all the REMIC 1 Regular Interests
(other than REMIC 1 Regular Interest P) pro rata based on, and to the extent of,
one month's interest at the then applicable respective Pass-Through Rate on the
respective Uncertificated Principal Balance of each such REMIC 1 Regular
Interest.
Section 1.04 Rights of the NIMS Insurer.
(a) Each of the rights of the NIMS Insurer set forth in this Agreement
shall exist so long as the Insured NIM Notes remain outstanding; provided,
however, the NIMS
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Insurer shall not have any rights hereunder (except as provided in Section 9.01)
so long as any NIMS Insurer Default is continuing.
(b) Notwithstanding anything to the contrary anywhere in this
Agreement, all rights and benefits of the NIMS Insurer hereunder shall
permanently terminate upon such time as the Insured NIM Notes shall no longer be
outstanding.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in and to the Mortgage Loans identified on the
Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan
Purchase Agreement (other than the Depositor's rights under Section 17 thereof),
all other assets included or to be included in REMIC 1. Such assignment includes
all scheduled payments on the Mortgage Loans due after the Cut-off Date and all
unscheduled collections in respect of the Mortgage Loans received after the
Cut-off Date (other than the portion of such collections due on or prior to the
Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy
of the Mortgage Loan Purchase Agreement and the PMI Policy. In addition, on or
prior to the Closing Date, the Trustee shall execute the Cap Agreements and the
Swap Agreement and the Depositor hereby directs the Trustee to do so.
If the assignment and transfer of the Mortgage Loans and the other property
specified in Section 2.01 from the Depositor to the Trustee pursuant to this
Agreement is held or deemed not to be a sale or is held or deemed to be a pledge
of security for a loan, the Depositor intends that the rights and obligations of
the parties shall be established pursuant to the terms of this Agreement and
that, in such event, (i) the Depositor shall be deemed to have granted and does
hereby grant to the Trustee as of the Closing Date a perfected, first priority
security interest in the entire right, title and interest of the Depositor in
and to the Mortgage Loans and all other property conveyed to the Trust Fund
pursuant to this Section 2.01 and all proceeds thereof and (ii) this Agreement
shall constitute a security agreement under applicable law.
In connection with such transfer and assignment, the Depositor does hereby
deliver to, and deposit with, the Trustee as custodian (in which capacity it
will, unless otherwise specified, be acting under this Article II) the following
documents or instruments with respect to each Mortgage Loan so transferred and
assigned (with respect to each Mortgage Loan, a "Mortgage File"):
(a) the original Mortgage Note, endorsed in blank or in the following
form: "Pay to the order of Deutsche Bank National Trust Company, as Trustee
under the applicable agreement, without recourse," with all prior and
intervening endorsements showing a complete chain of endorsement from the
originator to the Person so endorsing to the Trustee or (in the case
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of not more than 1.00% of the Mortgage Loans, by aggregate principal balance as
of the Cut-off Date) a copy of such original Mortgage Note with an accompanying
Lost Note Affidavit executed by the Seller;
(b) the original Mortgage with evidence of recording thereon, and a
copy, certified by the appropriate recording office, of the recorded power of
attorney, if the Mortgage was executed pursuant to a power of attorney, with
evidence of recording thereon;
(c) an original Assignment in blank;
(d) the original recorded Assignment or Assignments showing a complete
chain of assignment from the originator to the Person assigning the Mortgage to
the Trustee or in blank;
(e) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any; and
(f) the original lender's title insurance policy, together with all
endorsements or riders issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the Mortgaged Property
represented therein as a fee interest vested in the Mortgagor, or in the event
such title policy is unavailable, a written commitment or uniform binder or
preliminary report of title issued by the title insurance or escrow company.
The Master Servicer, in its capacity as Seller, shall promptly (and in no
event later than thirty (30) Business Days, subject to extension upon a mutual
agreement between the Master Servicer and the Trustee), following the later of
the Closing Date and the date of receipt by the Master Servicer of the recording
information for a Mortgage submit or cause to be submitted for recording, at no
expense to the Trust Fund, the Trustee or the Depositor, in the appropriate
public office for real property records, each Assignment referred to in Sections
2.01(c) and (d) above and shall execute each original Assignment referred to in
clause (c) above in the following form: "Deutsche Bank National Trust Company,
as Trustee under applicable agreement, without recourse." In the event that any
such Assignment is lost or returned unrecorded because of a defect therein, the
Master Servicer, in its capacity as Seller, shall promptly prepare or cause to
be prepared a substitute Assignment or cure or cause to be cured such defect, as
the case may be, and thereafter cause each such Assignment to be duly recorded.
Notwithstanding the foregoing, the Assignments shall not be required to be
completed and submitted for recording with respect to any Mortgage Loan if each
Rating Agency does not require recordation in order for such Rating Agency to
assign the initial ratings to the Class A Certificates, the Mezzanine
Certificates, the Class B Certificates and the Other NIM Notes and the initial
shadow rating to the Insured NIM Notes, without giving effect to any insurance
policy issued by the NIMS Insurer; provided, however, each Assignment shall be
submitted for recording by the Master Servicer, in its capacity as Seller, in
the manner described above, at no expense to the Trust Fund or the Trustee, upon
the earliest to occur of: (i) reasonable direction by Holders of Certificates
entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master
Servicer Event of Default, (iii) the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer
as described in Section 7.02 hereof and (v) if the Seller is not the Master
Servicer and with respect to any one Assignment, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related Mortgage.
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Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost
of recording the Assignments, such expense shall be paid by the Trustee and
shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense.
If any of the documents referred to in Sections 2.01(b), (c), (d) or (e)
above (collectively, the "Recording Documents") has as of the Closing Date been
submitted for recording but either (x) has not been returned from the applicable
public recording office or (y) has been lost or such public recording office has
retained the original of such document, the obligations of the Master Servicer,
in its capacity as the Seller, to deliver such Recording Documents shall be
deemed to be satisfied upon (1) delivery to the Trustee or the applicable
Custodian of a copy of each such Recording Document certified by the Seller in
the case of (x) above or the applicable public recording office in the case of
(y) above to be a true and complete copy of the original that was submitted for
recording and (2) if such copy is certified by the Seller, delivery to the
Trustee or the applicable Custodian promptly upon receipt thereof, and in any
event no later than one year after the Closing Date, of either the original or a
copy of such Recording Document certified by the applicable public recording
office to be a true and complete copy of the original. In instances where, due
to a delay on the part of the recording office where any such Recording
Documents have been delivered for recordation, the Recording Documents cannot be
delivered to the Trustee or the applicable Custodian within one year after the
Closing Date, the Master Servicer, in its capacity as the Seller, shall deliver
to the Trustee or the applicable Custodian within such time period an Officer's
Certificate stating the date by which the Master Servicer, in its capacity as
the Seller, expects to receive such Recording Documents from the applicable
recording office. In the event that Recording Documents have still not been
received by the Master Servicer, in its capacity as the Seller, and delivered to
the Trustee or the applicable Custodian by the date specified in its previous
Officer's Certificate delivered to the Trustee or the applicable Custodian, as
the case may be, the Master Servicer, in its capacity as the Seller, shall
deliver to the Trustee or the applicable Custodian by such date an additional
Officer's Certificate stating a revised date by which the Master Servicer, in
its capacity as the Seller, expects to receive the applicable Recording
Documents. This procedure shall be repeated until the Recording Documents have
been received by the Master Servicer, in its capacity as the Seller, and
delivered to the Trustee or the applicable Custodian. If the original lender's
title insurance policy was not delivered pursuant to Section 2.01(f) above, the
Master Servicer, in its capacity as the Seller, shall deliver or cause to be
delivered to the Trustee or the applicable Custodian promptly after receipt
thereof, and in any event within 120 days after the Closing Date, the original
lender's title insurance policy. The Master Servicer, in its capacity as the
Seller, shall deliver or cause to be delivered to the Trustee or the applicable
Custodian promptly upon receipt thereof any other original documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
All original documents relating to the Mortgage Loans that are not
delivered to the Trustee or the applicable Custodian are and shall be held by or
on behalf of the Seller, the Depositor or the Master Servicer, as the case may
be, in trust for the benefit of the Trustee on behalf of the Certificateholders.
In the event that any such original document is required pursuant to the terms
of this Section to be a part of a Mortgage File, such document shall be
delivered promptly to the Trustee or the applicable Custodian. Any such original
document delivered to or held by the Depositor that is not required pursuant to
the terms of this Section to be a part of a Mortgage File, shall be delivered
promptly to the Master Servicer.
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The Mortgage Loans permitted by the terms of this Agreement to be included
in the Trust are limited to (i) the Mortgage Loans (which the Depositor acquired
pursuant to the Mortgage Loan Purchase Agreement, which contains, among other
representations and warranties, a representation and warranty of the Seller that
no Mortgage Loan is a "high-cost" or "predatory" loan under any state or local
law or regulation applicable to the originator), and (ii) Qualified Substitute
Mortgage Loans (which, by definition as set forth herein and referred to in the
Mortgage Loan Purchase Agreement, are required to conform to, among other
representations and warranties, the representation and warranty of the Seller
that no Qualified Substitute Mortgage Loan is a "high cost" or "predatory" loan
under any state or local law or regulation applicable to the originator). It is
agreed and understood by the parties hereto that it is not intended that any
mortgage loan be included in the Trust that is a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership Act effective November 27, 2003, a
"High Cost Home Loan" as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, a "High Cost Home Loan" as defined in the Kentucky
high-cost loan statute effective June 24, 2003 (Ky. Rev. Stat. Section 360.100),
or a "High Cost Home Loan" as defined in the Indiana Home Loan Practices Act
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9) or a
"High Cost Mortgage Loan" as defined in the Massachusetts Predatory Home Loan
Practices Act effective November 7, 2004 (Mass. Gen. Laws Ch. 183C. Sections1 et
seq.).
Section 2.02 Acceptance of REMIC 1 by the Trustee.
Subject to the provisions of Section 2.01 and subject to any exceptions
noted on the exception report described in the next paragraph below, the Trustee
or a Custodian on behalf of the Trustee, as applicable, acknowledges receipt of
the documents referred to in Section 2.01 above and all other assets included in
the definition of "REMIC 1" under clauses (i), (iii), (iv) and (vi) (to the
extent of amounts deposited into the Distribution Account) and declares that it
holds and will hold such documents and the other documents delivered to it
constituting the Mortgage File, and all such assets and such other assets
included in the definition of "REMIC 1" in trust for the exclusive use and
benefit of all present and future Certificateholders.
The Trustee or the Custodian, as applicable, agrees, for the benefit of the
Certificateholders, to review each Mortgage File on or before the Closing Date,
with respect to each Mortgage Loan and to certify to the Trustee, the NIMS
Insurer, the Depositor and the Master Servicer in substantially the form
attached hereto as Exhibit F-1 that, as to each Closing Date Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or any Mortgage Loan specifically identified in the exception report annexed
thereto as not being covered by such certification), (i) all documents
constituting part of such Mortgage File (other than such documents described in
Section 2.01(e)) required to be delivered to it pursuant to this Agreement are
in its possession, (ii) such documents have been reviewed by the Trustee or the
Washington Mutual Custodian, as applicable and are not mutilated, torn or
defaced unless initialed by the related borrower and relate to such Mortgage
Loan and (iii) based on the Trustee's examination and only as to the foregoing,
the information set forth in the Mortgage Loan Schedule that corresponds to
items (i), (ii), (ix), (xii), (xiv) (to the extent of the Periodic Rate Cap for
the first Adjustment Date and subsequent Adjustment Dates) and (xvi) of the
definition of "Mortgage Loan Schedule" accurately reflects information set forth
in the Mortgage File. It is herein acknowledged that, in conducting such review,
neither the Trustee nor any Custodian is under any duty or obligation (i) to
inspect, review or examine any such documents, instruments, certificates or
other papers to determine whether they are genuine,
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enforceable, or appropriate for the represented purpose (including with respect
to Section 2.01(f), whether such title insurance policy (a) contains all
necessary endorsements, (b) insures the priority of the Mortgage as a first lien
or (c) whether the interest vested in the Mortgagor is a fee interest) or
whether they have actually been recorded or that they are other than what they
purport to be on their face or (ii) to determine whether any Mortgage File
should include any of the documents specified in clause (e) of Section 2.01.
Prior to the first anniversary date of this Agreement, the Trustee shall
deliver (or, with respect to the Mortgage Loans held by another Custodian, such
Custodian shall deliver) to the Depositor, the Master Servicer and the NIMS
Insurer a final certification in the form annexed hereto as Exhibit F-2
evidencing the completeness of the Mortgage Files, with any applicable
exceptions noted thereon.
If in the process of reviewing the Mortgage Files and making or preparing,
as the case may be, the certifications referred to above, the Trustee holding
such Mortgage Files or any Custodian holding such Mortgage Files finds any
document or documents constituting a part of a Mortgage File to be missing or
defective in any material respect, at the conclusion of its review the Trustee
shall so notify or such other Custodian shall notify the Depositor, the Seller,
the NIMS Insurer and the Master Servicer. In addition, upon the discovery by the
Depositor, the Master Servicer or the Trustee of a breach of any of the
representations and warranties made by the Seller in the Mortgage Loan Purchase
Agreement in respect of any Mortgage Loan which materially and adversely affects
the value of such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties.
Section 2.03 Cure, Repurchase or Substitution of Mortgage Loans by the Seller;
Remedies for Breaches by Depositor or Master Servicer; Remedies for Breaches
Relating to Prepayment Charges.
(a) Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, the Mortgage File or of the
breach by the Seller of any representation, warranty or covenant under the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan which
materially and adversely affects the value of such Mortgage Loan or the interest
therein of the Certificateholders (it being understood that (i) in the case of
any such representation or warranty made to the knowledge or the best of
knowledge of the Seller, as to which the Seller has no knowledge, without regard
to the Seller's lack of knowledge with respect to the substance of such
representation or warranty being inaccurate at the time it was made or (ii) with
respect to the representation and warranty set forth in the last sentence of
Section 6(xxxix), Section 6(xlvi), the first sentence of Section 6(xlvii),
Section 6(lxi) and Section 6(lxiv) of the Mortgage Loan Purchase Agreement, a
breach of any such representation or warranty shall in and of itself be deemed
to materially and adversely affect the interest of the Certificateholders in the
related Mortgage Loan), the Trustee shall promptly notify the Depositor, the
Seller, the NIMS Insurer and the Master Servicer of such defect, missing
document or breach and request that the Seller deliver such missing document or
cure such defect or breach within 90 days from the date the Seller was notified
of such missing document, defect or breach (except as described in Section
2.03(e)), and if the Seller does not deliver such missing document or cure such
defect or breach in all material respects during such period, the Master
Servicer (or, in accordance with Section 3.02(b), the Trustee) shall enforce the
obligations of the Seller under the Mortgage Loan
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Purchase Agreement to repurchase such Mortgage Loan from REMIC 1 at the Purchase
Price within 90 days after the date on which the Seller was notified (subject to
Section 2.03(e)) of such missing document, defect or breach, if and to the
extent that the Seller is obligated to do so under the Mortgage Loan Purchase
Agreement. The Purchase Price for the repurchased Mortgage Loan shall be
deposited in the Collection Account, and the Trustee or a Custodian, as
applicable, upon receipt of written certification from the Master Servicer of
such deposit, shall release to the Seller the related Mortgage File, and the
Trustee or a Custodian on behalf of the Trustee, as applicable, shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as the Seller shall furnish to it or such Custodian, as applicable,
and as shall be necessary to vest in the Seller any Mortgage Loan released
pursuant hereto, and neither the Trustee nor any Custodian shall have any
further responsibility with regard to such Mortgage File. In lieu of
repurchasing any such Mortgage Loan as provided above, if so provided in the
Mortgage Loan Purchase Agreement, the Seller may cause such Mortgage Loan to be
removed from REMIC 1 (in which case it shall become a Deleted Mortgage Loan) and
substitute one or more Qualified Substitute Mortgage Loans in the manner and
subject to the limitations set forth in Section 2.03(d). It is understood and
agreed that the obligation of the Seller to cure or to repurchase (or to
substitute for) any Mortgage Loan as to which a document is missing, a material
defect in a constituent document exists or as to which such a breach has
occurred and is continuing shall constitute the sole remedy respecting such
omission, defect or breach available to the Certificateholders, the Trustee on
behalf of the Certificateholders and the NIMS Insurer.
(b) Within 90 days of the earlier of discovery by the Depositor or
receipt of notice by the Depositor of the breach of any representation or
warranty of the Depositor set forth in Section 2.05 with respect to any Mortgage
Loan, which materially adversely affects the value of such Mortgage Loan or the
interest therein of the Certificateholders, the Depositor shall cure such breach
in all material respects.
(c) As promptly as practicable (and no later than 90 days) after the
earlier of discovery by the Master Servicer or receipt of notice by the Master
Servicer of the breach of any representation, warranty or covenant of the Master
Servicer set forth in Section 2.04 which materially and adversely affects the
value of any Mortgage Loan or the interests of the Certificateholders in any
Mortgage Loan, the Master Servicer shall cure such breach in all material
respects.
Within 90 days of the earlier of discovery by the Master Servicer or
receipt of notice by the Master Servicer of the breach of any representation,
warranty or covenant of the Master Servicer set forth in Section 2.04(a)(vii) or
(viii) which materially and adversely affects the interests of the Holders of
the Class P Certificates to any Prepayment Charge, the Master Servicer shall
cure such breach in all material respects. If the representation made by the
Master Servicer in its capacity as Seller in Section 2.04(a)(vii) is breached,
the Master Servicer in its capacity as Seller shall pay into the Collection
Account the amount of the scheduled Prepayment Charge, less any amount
previously collected and deposited by, or paid by, the Master Servicer into the
Collection Account; and if the covenant made by the Master Servicer in Section
2.04(a)(viii) is breached, the Master Servicer shall pay into the Collection
Account the amount of the waived Prepayment Charge.
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(d) Any substitution of Qualified Substitute Mortgage Loans for
Deleted Mortgage Loans made pursuant to Section 2.03(a) shall be effected prior
to the date which is two years after the Startup Date for REMIC 1.
As to any Deleted Mortgage Loan for which the Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected
by the Seller delivering to the Trustee (or, with respect to the Mortgage Loans
held by another Custodian, to such Custodian) on behalf of the Trustee, for such
Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the Assignment to the Trustee, and such other documents and agreements, with all
necessary endorsements thereon, as are required by Section 2.01, together with
an Officers' Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution
Adjustments (as described below), if any, in connection with such substitution.
The Trustee shall acknowledge or with respect to the Mortgage Loans held by
another Custodian such other Custodian shall acknowledge receipt for such
Qualified Substitute Mortgage Loan or Loans and, within ten Business Days
thereafter, review such documents as specified in Section 2.02 and deliver to
the Depositor, the Master Servicer and the NIMS Insurer, with respect to such
Qualified Substitute Mortgage Loan or Loans, a certification substantially in
the form attached hereto as Exhibit F-1, with any applicable exceptions noted
thereon. Within one year of the date of substitution, the Trustee shall deliver
or with respect to the Mortgage Loans held by another Custodian, such other
Custodian shall deliver to the Depositor, the Seller, the NIMS Insurer and the
Master Servicer a certification substantially in the form of Exhibit F-2 hereto
with respect to such Qualified Substitute Mortgage Loan or Loans, with any
applicable exceptions noted thereon. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution are not part of
REMIC 1 and will be retained by the Seller. For the month of substitution,
distributions to Certificateholders will reflect the Monthly Payment due on such
Deleted Mortgage Loan on or before the Due Date in the month of substitution,
and the Seller shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Mortgage Loan. The Trustee shall give or
cause to be given written notice to the NIMS Insurer and the Certificateholders
that such substitution has taken place, and the Master Servicer shall amend or
cause to be amended the Mortgage Loan Schedule and, if applicable, the
Prepayment Charge Schedule to reflect the removal of such Deleted Mortgage Loan
from the terms of this Agreement and the substitution of the Qualified
Substitute Mortgage Loan or Loans and shall deliver a copy of such amended
Mortgage Loan Schedule and, if applicable, the Prepayment Charge Schedule to the
NIMS Insurer and the Trustee. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be
subject in all respects to the terms of this Agreement and the Mortgage Loan
Purchase Agreement, including all applicable representations and warranties
thereof included in the Mortgage Loan Purchase Agreement as of the date of
substitution.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master
Servicer will determine the amounts (the "Substitution Adjustments"), if any, by
which the aggregate Purchase Price of all such Deleted Mortgage Loans in Loan
Group I, Loan Group II or Loan Group III, respectively, exceeds the aggregate of
the Stated Principal Balance of the Qualified Substitute Mortgage Loans that
will become part of Loan Group I, Loan Group II or Loan Group III, respectively,
as of the date of substitution, together with one month's interest on such
Stated Principal Balance at the applicable Net Mortgage Rate, plus all
outstanding Advances and Servicing Advances with
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respect to such Deleted Mortgage Loan. On the date of such substitution, the
Seller will deliver or cause to be delivered to the Master Servicer for deposit
in the Collection Account an amount equal to the sum of Substitution
Adjustments, if any (which for federal income tax purposes will be treated as
payment for the repurchase of that portion of the Deleted Mortgage Loans), and
the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or
Loans (or acknowledgement of such receipt by another Custodian) and
certification by the Master Servicer of such deposit, shall release or, if such
Mortgage File is held by another Custodian, such Custodian shall release to the
Seller the related Mortgage File or Files and the Trustee shall execute and
deliver or, if such Mortgage File is held by another Custodian, such Custodian
shall execute and deliver such instruments of transfer or assignment, without
recourse, as the Seller shall deliver to it or such Custodian, as applicable,
and as shall be necessary to vest therein any Deleted Mortgage Loan released
pursuant hereto.
In addition, the Master Servicer in its capacity as Seller shall obtain at
its own expense and deliver to the NIMS Insurer and the Trustee an Opinion of
Counsel to the effect that such substitution will not cause (a) any federal tax
to be imposed on REMIC 1, created hereunder, including without limitation, any
federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the
Code or on contributions after the startup day under Section 860G(d)(1) of the
Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(e) Upon discovery by the Depositor, the Seller, the Master Servicer
or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering such
fact shall within two Business Days give written notice thereof to the other
parties. In connection therewith, the Master Servicer in its capacity as Seller
shall repurchase or, subject to the limitations set forth in Section 2.03(d),
substitute one or more Qualified Substitute Mortgage Loans for the affected
Mortgage Loan within 90 days of the earlier of discovery or receipt of such
notice with respect to such affected Mortgage Loan. Any such repurchase or
substitution shall be made in the same manner as set forth in Section 2.03(a)
and Section 2.03(d). The Trustee shall reconvey to the Seller the Mortgage Loan
to be released pursuant hereto in the same manner, and on the same terms and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty.
Section 2.04 Representations, Warranties and Covenants of the Master Servicer.
(a) The Master Servicer hereby represents, warrants and covenants to
the Trustee, for the benefit of the Trustee and the Certificateholders, and to
the Depositor, that as of the Closing Date or as of such date specifically
provided herein:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation, is duly authorized and qualified to transact any and
all business contemplated by this Agreement and has all licenses
necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in the states where the
Mortgaged Properties are located if the laws of such state require
licensing or qualification in order to conduct business of the type
conducted by the Master Servicer or to ensure the enforceability or
validity of each Mortgage Loan and, in any event, is in compliance
with the doing business laws of any such State, to the
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extent necessary to ensure its ability to enforce each Mortgage Loan
and to service the Mortgage Loans in accordance with the terms of this
Agreement;
(ii) The Master Servicer has the full power and authority to
service each Mortgage Loan, to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by this
Agreement and has duly authorized by all necessary action on the part
of the Master Servicer the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization,
execution and delivery thereof by the Depositor and the Trustee,
constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with
its terms, except to the extent that (a) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) The execution and delivery of this Agreement by the Master
Servicer, the servicing of the Mortgage Loans by the Master Servicer
hereunder, the consummation by the Master Servicer of any other of the
transactions herein contemplated, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of the
Master Servicer and will not (A) result in a breach of any term or
provision of the charter or by-laws of the Master Servicer or (B)
conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement
or instrument to which the Master Servicer is a party or by which it
may be bound, or any statute, order or regulation applicable to the
Master Servicer of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Master Servicer; and
the Master Servicer is not a party to, bound by, or in breach or
violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it, which materially and adversely affects
or, to the Master Servicer's knowledge, would in the future materially
and adversely affect, (x) the ability of the Master Servicer to
perform its obligations under this Agreement or (y) the business,
operations, financial condition, properties or assets of the Master
Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for
Xxxxxx Xxx or Xxxxxxx Mac in good standing and is a HUD approved
mortgagee pursuant to Section 203 and Section 211 of the National
Housing Act;
(v) No litigation is pending against the Master Servicer that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master Servicer
to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
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(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Master Servicer of, or compliance by the Master
Servicer with, this Agreement or the consummation by the Master
Servicer of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that
have been obtained prior to the Closing Date;
(vii) The information set forth in the Prepayment Charge Schedule
is complete, true and correct in all material respects at the date or
dates respecting which such information is furnished and each
Prepayment Charge is permissible and enforceable in accordance with
its terms under applicable law upon the Mortgagor's voluntary
principal prepayment (except to the extent that: (1) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally; or (2) the collectability thereof may be limited due
to acceleration in connection with a foreclosure or other involuntary
prepayment); provided that the representation, warranty and covenant
contained in this clause (vii) is made by the Master Servicer only in
its capacity as Seller; and
(viii) The Master Servicer will not waive any Prepayment Charge
or part of a Prepayment Charge unless such waiver is related to a
default or a reasonably foreseeable default and would maximize
recovery of total proceeds taking into account the value of such
Prepayment Charge and related Mortgage Loan and doing so is standard
and customary in servicing mortgage loans similar to the Mortgage
Loans (including any waiver of a Prepayment Charge in connection with
a refinancing of a Mortgage Loan that is related to a default or a
reasonably foreseeable default).
(ix) With respect to each Mortgage Loan, the Master Servicer will
furnish, or cause to be furnished, information regarding the borrower
credit file related to such Mortgage Loan to credit reporting agencies
in compliance with the provisions of the Fair Credit Reporting Act and
the applicable implementing regulations. The Master Servicer will
transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Mae Guide Announcement 95-19 and that for each
Mortgage Loan, the Master Servicer agrees it shall report one of the
following statuses each month as follows: new origination, current,
delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
(b) It is understood and agreed that the representations, warranties
and covenants set forth in this Section 2.04 shall survive delivery of the
Mortgage Files to the Trustee or a Custodian, as the case may be, and shall
inure to the benefit of the Trustee, the Depositor and the Certificateholders.
Upon discovery by any of the Depositor, the Master Servicer or the Trustee of a
breach of any of the foregoing representations, warranties and covenants which
materially and adversely affects the value of any Mortgage Loan, Prepayment
Charge or the interests therein of the Certificateholders, the party discovering
such breach shall give prompt written notice (but in no event later than two
Business Days following such discovery) to the other of such parties. The
obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches
(or, in the case of (a)(vii) or (a)(viii) above, to pay a Master Servicer
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Prepayment Charge Payment Amount) shall constitute the sole remedy against the
Master Servicer available to the Certificateholders, the Depositor, the NIMS
Insurer or the Trustee on behalf of the Certificateholders respecting a breach
of the representations, warranties and covenants contained in this Section 2.04.
The preceding sentence shall not, however, limit any remedies available to the
Certificateholders, the Depositor, the NIMS Insurer or the Trustee on behalf of
the Certificateholders, (i) pursuant to the Mortgage Loan Purchase Agreement
signed by the Master Servicer in its capacity as Seller, respecting a breach of
the representations, warranties and covenants of the Master Servicer in its
capacity as Seller contained in the Mortgage Loan Purchase Agreement or (ii)
pursuant to Section 7.01 hereof.
Section 2.05 Representations and Warranties of the Depositor.
The Depositor hereby represents, warrants and covenants to the Trustee, for
the benefit of the Trustee and the Certificateholders, and to the Master
Servicer, that as of the Closing Date or as of such date specifically provided
herein:
(i) Each of this Agreement and the Mortgage Loan Purchase
Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a
proceeding at law or in equity);
(ii) Immediately prior to the sale and assignment by the
Depositor to the Trustee on behalf of the Trust of each Mortgage Loan,
the Depositor had good and marketable title to each Mortgage Loan
subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other
interest of any nature;
(iii) As of the Closing Date, the Depositor has transferred all
of its right, title and interest in the Mortgage Loans to the Trustee
on behalf of the Trust;
(iv) The Depositor is solvent and will not be made insolvent by
the transfer of the Mortgage Loans. The Depositor has not transferred
the Mortgage Loans to the Trustee with any intent to hinder, delay or
defraud any of its creditors;
(v) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
with full corporate power and authority to own its assets and conduct
its business as presently being conducted;
(vi) The Depositor is not in violation of its articles of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
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loan agreement, note, lease or other instrument to which the Depositor
is a party or by which it or its properties may be bound, which
default might result in any material adverse changes in the financial
condition, earnings, affairs or business of the Depositor or which
might materially and adversely affect the properties or assets, taken
as a whole, of the Depositor;
(vii) The execution, delivery and performance of this Agreement
and the Mortgage Loan Purchase Agreement by the Depositor, and the
consummation of the transactions contemplated hereby and thereby, do
not and will not result in a material breach or violation of any of
the terms or provisions of, or, to the knowledge of the Depositor,
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Depositor
is a party or by which the Depositor is bound or to which any of the
property or assets of the Depositor is subject, nor will such actions
result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or, to the best of the
Depositor's knowledge without independent investigation, any statute
or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Depositor or any of its
properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the
ability of the Depositor to perform its obligations under this
Agreement or the Mortgage Loan Purchase Agreement);
(viii) To the best of the Depositor's knowledge without any
independent investigation, no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body of the United States or any other jurisdiction is
required for the issuance of the Certificates, or the consummation by
the Depositor of the other transactions contemplated by this Agreement
or the Mortgage Loan Purchase Agreement, except such consents,
approvals, authorizations, registrations or qualifications as (a) may
be required under State securities or blue sky laws, (b) have been
previously obtained or (c) the failure of which to obtain would not
have a material adverse effect on the performance by the Depositor of
its obligations under, or the validity or enforceability of, this
Agreement or the Mortgage Loan Purchase Agreement;
(ix) There are no actions, proceedings or investigations pending
before or, to the Depositor's knowledge, threatened by any court,
administrative agency or other tribunal to which the Depositor is a
party or of which any of its properties is the subject: (a) which if
determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition
of the Depositor; (b) asserting the invalidity of this Agreement, the
Mortgage Loan Purchase Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation by the
Depositor of any of the transactions contemplated by this Agreement or
the Mortgage Loan Purchase Agreement, as the case may be; or (d) which
might materially and adversely affect the performance by the Depositor
of its obligations under, or the validity or enforceability of, this
Agreement or the Mortgage Loan Purchase Agreement; and
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(x) The Depositor has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all
necessary action on the part of the Depositor the execution, delivery
and performance of this Agreement and this Agreement, assuming the due
authorization, execution and delivery thereof by the parties thereto
other than the Depositor, constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, except to the extent that (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
Section 2.06 Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery to it or a Custodian of the Mortgage Files, subject to the provisions
of Sections 2.01 and 2.02, together with the assignment to it of all other
assets included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor executed by an officer
of the Depositor, has executed, authenticated and delivered to or upon the
written order of the Depositor, the Certificates in authorized denominations.
The interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
Section 2.07 Reserved.
Section 2.08 Conveyance of REMIC Regular Interests and Acceptance of REMICs by
the Trustee; Issuance of Certificates.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey in trust to
the Trustee without recourse all the right, title and interest of the Depositor
in and to the REMIC 1 Regular Interests for the benefit of REMIC 3, as the
holder of the REMIC 2 Regular Interest, and the holder of the Class R-2
Interest. The Trustee acknowledges receipt of the REMIC 1 Regular Interests
(which are uncertificated) and declares that it holds and will hold the same in
trust for the exclusive use and benefit of REMIC 3, as the holder of the REMIC 2
Regular Interests, and the holder of the Class R-2 Interest. The interests
evidenced by the Class R-2 Interest and the REMIC 2 Regular Interests,
constitute the entire beneficial ownership interest in REMIC 2.
(b) In exchange for the REMIC 1 Regular Interests and, concurrently
with the assignment to the Trustee thereof, the Trustee has delivered to or upon
the order of the Depositor, the REMIC 2 Regular Interests (which are
uncertificated) evidencing (together with the Class R-2 Interest) the entire
beneficial ownership interest in REMIC 2.
(c) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey in trust to
the Trustee without recourse all the right, title and interest of the Depositor
in and to the REMIC 2 Regular Interests for the
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benefit of REMIC 4, as the holders of the REMIC 3 Regular Interests, and the
holder of the Class R-3 Interest. The Trustee acknowledges receipt of the REMIC
2 Regular Interests (which are uncertificated) and declares that it holds and
will hold the same in trust for the exclusive use and benefit of REMIC 4, as the
holders of the REMIC 3 Regular Interests, and the holder of the Class R-3
Interest. The interests evidenced by the Class R-3 Interest and the REMIC 3
Regular Interests constitute the entire beneficial ownership interest in REMIC
3.
(d) In exchange for the REMIC 2 Regular Interests and, concurrently
with the assignment to the Trustee thereof, the Trustee has delivered to or upon
the order of the Depositor, the REMIC 3 Regular Interests (which are
uncertificated) evidencing (together with the Class R-3 Interest) the entire
beneficial ownership interest in REMIC 3.
(e) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey in trust to
the Trustee without recourse all the right, title and interest of the Depositor
in and to the REMIC 3 Regular Interests for the benefit of the holders of the
Certificates (other than the Class C Certificates, the Class P Certificates, the
Class R-CX Certificates and the Class R-PX Certificates), REMIC CX, as holder of
the Class C Interest, REMIC PX, as holder of the Class P Interest, REMIC SwapX,
as holder of the Class Swap IO Interest, and the Class R-4 Interest. The Trustee
acknowledges receipt of the REMIC 3 Regular Interests (which are uncertificated)
and declares that it holds and will hold the same in trust for the exclusive use
and benefit of the holders of the Certificates (other than the Class C
Certificates, the Class P Certificates, the Class R-CX Certificates and the
Class R-PX Certificates), REMIC CX, as holder of the Class C Interest, REMIC PX,
as holder of the Class P Interest, REMIC SwapX, as holder of the Class Swap IO
Interest, and the Class R-4 Interest. The interests evidenced by the Class R-4
Interest, the Regular Certificates (other than the Class C Certificates and the
Class P Certificates), and the REMIC 4 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 4.
(f) In exchange for the REMIC 3 Regular Interests and, concurrently
with the assignment to the Trustee thereof, pursuant to the written request of
the Depositor executed by an officer of the Depositor, the Trustee has executed,
authenticated and delivered to or upon the order of the Depositor, the Regular
Certificates (other than the Class C Certificates and the Class P Certificates)
in authorized denominations evidencing (together with the Class R-4 Interest and
the REMIC 4 Regular Interests) the entire beneficial ownership interest in REMIC
4. The Trustee acknowledges that it holds the Class FMR IO Interest for the
benefit of the holders of the Class C Certificates.
(g) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey in trust to
the Trustee without recourse all the right, title and interest of the Depositor
in and to the Class C Interest for the benefit of the holders of the Class C
Certificates and the Class R-CX Interest. The Trustee acknowledges receipt of
the Class C Interest and declares that it holds and will hold the same in trust
for the exclusive use and benefit of the holders of the Class C Certificates and
the Class R-CX Certificates. The interests evidenced by the Class C Certificates
and the Class R-CX Certificates constitute the entire beneficial ownership
interest in REMIC CX.
(h) In exchange for the Class C Interest and, concurrently with the
assignment to the Trustee thereof, pursuant to the written request of the
Depositor executed by an officer of
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the Depositor, the Trustee has executed, authenticated and delivered to or upon
the order of the Depositor, the Class C Certificates in authorized denominations
evidencing (together with the Class R-CX Interest) the entire beneficial
ownership interest in REMIC CX.
(i) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey in trust to
the Trustee without recourse all the right, title and interest of the Depositor
in and to the Class P Interest for the benefit of the holders of the Class P
Certificates and the Class R-PX Interest. The Trustee acknowledges receipt of
the Class P Interest and declares that it holds and will hold the same in trust
for the exclusive use and benefit of the holders of the Class P Certificates and
the Class R-PX Certificates. The interests evidenced by the Class P Certificates
and the Class R-PX Certificates constitute the entire beneficial ownership
interest in REMIC PX.
(j) In exchange for the Class P Interest and, concurrently with the
assignment to the Trustee thereof, pursuant to the written request of the
Depositor executed by an officer of the Depositor, the Trustee has executed,
authenticated and delivered to or upon the order of the Depositor, the Class P
Certificates in authorized denominations evidencing (together with the Class
R-PX Interest) the entire beneficial ownership interest in REMIC PX.
(k) Concurrently with the assignments and deliveries to the Trustee
and the acceptances by the Trustee, pursuant to Section 2.01, Section 2.02 and
this Section 2.08, the Trustee, pursuant to the written request of the Depositor
executed by an officer of the Depositor, has executed, authenticated and
delivered to or upon the order of the Depositor (i) the Class R Certificates in
authorized denominations evidencing the Class R-1 Interest, the Class R-2
Interest, the Class R-3 Interest and the Class R-4 Interest, (ii) the Class R-CX
Certificates evidencing the Class R-CX Interest and the R-SwapX Interest and
(iii) the Class R-PX Certificates evidencing the Class R-PX Interest.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Master Servicer.
The Master Servicer shall service and administer the Mortgage Loans on
behalf of the Trustee and in the best interests of and for the benefit of the
Certificateholders (as determined by the Master Servicer in its reasonable
judgment) in accordance with the terms of this Agreement and the respective
Mortgage Loans and, to the extent consistent with such terms, in the same manner
in which it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of practice
of mortgage lenders and loan servicers administering similar mortgage loans in
the local areas where the related Mortgaged Property is located but without
regard to:
(i) any relationship that the Master Servicer, any Sub-Servicer
or any Affiliate of the Master Servicer or any Sub-Servicer may have
with the related Mortgagor;
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(ii) the ownership or non-ownership of any Certificate by the
Master Servicer or any Affiliate of the Master Servicer;
(iii) the Master Servicer's obligation to make Advances or
Servicing Advances; or
(iv) the Master Servicer's or any Sub-Servicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the foregoing, the Master Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
Mortgage Notes. Subject only to the above-described servicing standards and the
terms of this Agreement and of the respective Mortgage Loans, the Master
Servicer shall have full power and authority, acting alone or through
Sub-Servicers as provided in Section 3.02, to do or cause to be done any and all
things in connection with such servicing and administration in accordance with
policies and procedures generally accepted in the mortgage banking industry.
Without limiting the generality of the foregoing, the Master Servicer in its own
name or in the name of a Sub-Servicer is hereby authorized and empowered by the
Trustee when the Master Servicer believes it appropriate in its best judgment in
accordance with the servicing standards set forth above, to execute and deliver,
on behalf of the Certificateholders and the Trustee, and upon notice to the
Trustee, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect
to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and the Certificateholders. The Master
Servicer shall service and administer the Mortgage Loans in accordance with
applicable state and federal law and shall provide to the Mortgagors any reports
required to be provided to them thereby. The Master Servicer shall also comply
in the performance of this Agreement with all reasonable rules and requirements
of each insurer under any standard hazard insurance policy. Subject to Section
3.17, the Trustee, shall execute, at the written direction of the Master
Servicer, and furnish to the Master Servicer and any Sub-Servicer such documents
as are necessary or appropriate to enable the Master Servicer or any
Sub-Servicer to carry out their servicing and administrative duties hereunder,
and the Trustee hereby grants to the Master Servicer and each Sub-Servicer a
power of attorney to carry out such duties including a power of attorney to take
title to Mortgaged Properties after foreclosure on behalf of the Trustee and the
Certificateholders. The Trustee, at the direction of the Master Servicer, shall
execute a separate power of attorney in favor of (and furnish such power of
attorney to) the Master Servicer and/or each Sub-Servicer for the purposes
described herein to the extent necessary or desirable to enable the Master
Servicer to perform its duties hereunder. The Trustee shall not be liable for
the actions of the Master Servicer or any Sub-Servicers under such powers of
attorney.
Subject to Section 3.09 hereof, in accordance with the standards of the
preceding paragraph, the Master Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from collections on the related
Mortgage Loans from the Mortgagors pursuant to Section 3.09, and further as
provided in Section 3.11. Any cost incurred by the Master Servicer or by
Sub-Servicers in
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effecting the timely payment of taxes and assessments on a Mortgaged Property
shall not, for the purpose of calculating distributions to Certificateholders,
be added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
Notwithstanding anything in this Agreement to the contrary, the Master
Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.04) and the Master Servicer shall not (i)
permit any modification with respect to any Mortgage Loan that would change the
Mortgage Rate, reduce or increase the principal balance (except for reductions
resulting from actual payments of principal) or change the final maturity date
on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment of
the Master Servicer, reasonably foreseeable) or (ii) permit any modification,
waiver or amendment of any term of any Mortgage Loan that would both (A) effect
an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code
(or final, temporary or proposed Treasury regulations promulgated thereunder)
and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or
the imposition of any tax on "prohibited transactions" or contributions after
the startup day under the REMIC Provisions.
The Master Servicer may delegate its responsibilities under this Agreement;
provided, however, that no such delegation shall release the Master Servicer
from the responsibilities or liabilities arising under this Agreement.
With respect to each Mortgage Loan, the Master Servicer will furnish, or
cause to be furnished, information regarding the borrower credit file related to
such Mortgage Loan to credit reporting agencies in compliance with the
provisions of the Fair Credit Reporting Act and the applicable implementing
regulations.
Section 3.02 Sub-Servicing Agreements Between the Master Servicer and
Sub-Servicers.
(a) The Master Servicer may enter into Sub-Servicing Agreements
provided (i) that such agreements would not result in a withdrawal or a
downgrading by any Rating Agency of the ratings on any Class of Certificates,
any of the Other NIM Notes or any of the Insured NIM Notes (without giving
effect to any insurance policy issued by the NIMS Insurer), as evidenced by a
letter to that effect delivered by each Rating Agency to the Depositor and the
NIMS Insurer and (ii) that, except in the case of any Sub-Servicing Agreements
the Master Servicer may enter into with Washington Mutual, Inc. or any Affiliate
thereof, the NIMS Insurer shall have consented to such Sub-Servicing Agreements
(which consent shall not be unreasonably withheld) with Sub-Servicers, for the
servicing and administration of the Mortgage Loans. That certain Subservicing
Agreement by and between the Master Servicer and Washington Mutual Bank dated
April 9, 2001 is hereby acknowledged as being permitted under this Agreement and
meeting the requirements applicable to Sub-Servicing Agreements set forth in
this Agreement. The Trustee is hereby authorized to acknowledge, at the request
of the Master Servicer, any Sub-Servicing Agreement that meets the requirements
applicable to Sub-Servicing Agreements set forth in this Agreement and that is
otherwise permitted under this Agreement.
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Each Sub-Servicer shall be (i) authorized to transact business in the state
or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the Sub-Servicing
Agreement, (ii) an institution approved as a mortgagee by the Department of
Housing and Urban Development pursuant to Section 203 of the National Housing
Act of 1934, as amended, or an institution the deposit accounts in which are
insured by the FDIC and (iii) a Xxxxxx Xxx approved mortgage servicer. Each
Sub-Servicing Agreement must impose on the Sub-Servicer requirements conforming
to the provisions set forth in Section 3.08. The Master Servicer will examine
each Sub-Servicing Agreement and will be familiar with the terms thereof. The
terms of any Sub-Servicing Agreement will not be inconsistent with any of the
provisions of this Agreement. The Master Servicer and the Sub-Servicers may
enter into and make amendments to the Sub-Servicing Agreements or enter into
different forms of Sub-Servicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of this Agreement, and that no such amendment or different form shall
be made or entered into which could be reasonably expected to be materially
adverse to the interests of the Certificateholders, without the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
variation without the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights from the provisions set forth in Section 3.08
relating to insurance or priority requirements of Sub-Servicing Accounts, or
credits and charges to the Sub-Servicing Accounts or the timing and amount of
remittances by the Sub-Servicers to the Master Servicer, are conclusively deemed
to be inconsistent with this Agreement and therefore prohibited. The Master
Servicer shall deliver to the NIMS Insurer and the Trustee copies of all
Sub-Servicing Agreements, and any amendments or modifications thereof, promptly
upon the Master Servicer's execution and delivery of such instruments.
(b) As part of its servicing activities hereunder, the Master Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee and the Certificateholders, shall enforce the obligations
of each Sub-Servicer under the related Sub-Servicing Agreement and, subject to
the last sentence of this paragraph, of the Seller under the Mortgage Loan
Purchase Agreement including, without limitation, any obligation to make
advances in respect of delinquent payments as required by a Sub-Servicing
Agreement, or to purchase or otherwise remedy as contemplated herein a Mortgage
Loan on account of missing or defective documentation or on account of a breach
of a representation, warranty or covenant, as described in Section 2.03(a). Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements, and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer, in its good faith business judgment, would require
were it the owner of the related Mortgage Loans. The Master Servicer shall pay
the costs of such enforcement at its own expense, and shall be reimbursed
therefor only (i) from a general recovery resulting from such enforcement, to
the extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loans or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed.
Enforcement of the Mortgage Loan Purchase Agreement against the Seller shall be
effected by the Master Servicer to the extent it is not the Seller, and
otherwise by the Trustee, in accordance with the foregoing provisions of this
paragraph.
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Section 3.03 Successor Sub-Servicers.
The Master Servicer, with the written consent of the NIMS Insurer, shall be
entitled to terminate any Sub-Servicing Agreement and the rights and obligations
of any Sub-Servicer pursuant to any Sub-Servicing Agreement in accordance with
the terms and conditions of such Sub-Servicing Agreement. In the event of
termination of any Sub-Servicer, all servicing obligations of such Sub-Servicer
shall be assumed simultaneously by the Master Servicer without any act or deed
on the part of such Sub-Servicer or the Master Servicer, and the Master Servicer
either shall service directly the related Mortgage Loans or shall enter into a
Sub-Servicing Agreement with a successor Sub-Servicer which qualifies under
Section 3.02.
Any Sub-Servicing Agreement shall include the provision that such agreement
may be immediately terminated by the Trustee without fee, in accordance with the
terms of this Agreement, and the Trustee shall so terminate such Sub-Servicing
Agreement at the direction of the NIMS Insurer in the event that the Master
Servicer (or the Trustee, if then acting as Master Servicer) shall, for any
reason, no longer be the Master Servicer (including termination due to a Master
Servicer Event of Default).
Section 3.04 Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer and
a Sub-Servicer or reference to actions taken through a Sub-Servicer or
otherwise, the Master Servicer shall remain obligated and primarily liable to
the Trustee and the Certificateholders for the servicing and administering of
the Mortgage Loans in accordance with the provisions of Section 3.01 without
diminution of such obligation or liability by virtue of such Sub-Servicing
Agreements or arrangements or by virtue of indemnification from the Sub-Servicer
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Mortgage Loans. The Master
Servicer shall be entitled to enter into any agreement with a Sub-Servicer for
indemnification of the Master Servicer by such Sub-Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification and no such indemnification shall be an expense of the Trust.
Section 3.05 No Contractual Relationship Between Sub-Servicers and the NIMS
Insurer, the Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any transactions
or services relating to the Mortgage Loans involving a Sub-Servicer in its
capacity as such shall be deemed to be between the Sub-Servicer and the Master
Servicer alone, and the Trustee, the NIMS Insurer and the Certificateholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the Sub-Servicer except as
set forth in Section 3.06. The Master Servicer shall be solely liable for all
fees owed by it to any Sub-Servicer, irrespective of whether the Master
Servicer's compensation pursuant to this Agreement is sufficient to pay such
fees and such fees shall not be an expense of the Trust.
Section 3.06 Assumption or Termination of Sub-Servicing Agreements by Trustee.
In the event the Master Servicer shall for any reason no longer be the
master servicer (including by reason of the occurrence of a Master Servicer
Event of Default), the Trustee or its
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designee shall thereupon assume all of the rights and obligations of the Master
Servicer under each Sub-Servicing Agreement that the Master Servicer may have
entered into, unless the Trustee elects to terminate any Sub-Servicing Agreement
in accordance with its terms as provided in Section 3.03. Upon such assumption,
the Trustee, its designee or the successor servicer for the Trustee appointed
pursuant to Section 7.02 shall be deemed, subject to Section 3.03, to have
assumed all of the Master Servicer's interest therein and to have replaced the
Master Servicer as a party to each Sub-Servicing Agreement to the same extent as
if each Sub-Servicing Agreement had been assigned to the assuming party, except
that (i) the Master Servicer shall not thereby be relieved of any liability or
obligations under any Sub-Servicing Agreement that arose before it ceased to be
the Master Servicer and (ii) none of the Trustee, its designee or any successor
Master Servicer shall be deemed to have assumed any liability or obligation of
the Master Servicer that arose before it ceased to be the Master Servicer.
The Master Servicer at its own expense and without reimbursement shall,
upon request of the Trustee, deliver to the assuming party all documents and
records relating to each Sub-Servicing Agreement and the Mortgage Loans then
being serviced and an accounting of amounts collected and held by or on behalf
of it, and otherwise use its best efforts to effect the orderly and efficient
transfer of the Sub-Servicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments.
The Master Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans, and shall, to
the extent such procedures shall be consistent with this Agreement and the terms
and provisions of any applicable insurance policies, follow such collection
procedures as it would follow with respect to mortgage loans comparable to the
Mortgage Loans and held for its own account. Consistent with the foregoing, the
Master Servicer may in its discretion (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the due dates for the Monthly
Payments due on a Mortgage Note for a period of not greater than 180 days;
provided that any extension pursuant to this clause (ii) shall not affect the
amortization schedule of any Mortgage Loan for purposes of any computation
hereunder, except as provided below. In the event of any such arrangement
pursuant to clause (ii) above, the Master Servicer shall make timely advances on
such Mortgage Loan during such extension pursuant to Section 4.04 and in
accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to Section 4.04(d)
pursuant to which the Master Servicer shall not be required to make any such
advances that are Nonrecoverable Advances. Notwithstanding the foregoing, in the
event that any Mortgage Loan is in default or, in the judgment of the Master
Servicer, such default is reasonably foreseeable, the Master Servicer,
consistent with the standards set forth in Section 3.01, may also waive, modify
or vary any term of such Mortgage Loan (including modifications that would
change the Mortgage Rate, forgive the payment of principal or interest or extend
the final maturity date of such Mortgage Loan, accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan (such payment, a "Short Pay-off") or consent
to the postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor; provided, that in the judgment of the Master
Servicer, any such modification, waiver or amendment could reasonably be
expected to result in collections and other recoveries in respect of such
Mortgage Loans in excess of Net Liquidation Proceeds that would be recovered
upon the foreclosure of, or other realization upon, such Mortgage Loan and
provided further, that the NIMS Insurer's prior written consent shall be
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required for any modification, waiver or amendment if the aggregate number of
outstanding Mortgage Loans which have been modified, waived or amended exceeds
5% of the number of Closing Date Mortgage Loans as of the Cut-off Date.
Notwithstanding anything herein to the contrary, the Master Servicer may waive a
Prepayment Charge pursuant to the conditions set forth in Section 2.04(a)(viii).
With respect to any such waiver of a Prepayment Charge, the Master Servicer
shall deliver to the Trustee an Officer's Certificate substantially in the form
of Exhibit M hereto stating that the conditions set forth in Section
2.04(a)(viii) have been met with respect to the related Mortgage Loan.
Notwithstanding anything herein to the contrary, the Master Servicer shall not
be liable to any Person for failure to deliver such Officer's Certificate, and
the failure to deliver such Officer's Certificate shall not constitute a breach
of the representation, warranty and covenant in Section 2.04(a)(viii). Promptly
upon receipt of such Officer's Certificate, the Trustee shall deliver such
Officer's Certificate to the indenture trustee under the Indenture.
Section 3.08 Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage Loan pursuant
to a Sub-Servicing Agreement, the Sub-Servicer shall be required to establish
and maintain one or more segregated accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall be
entitled "Deutsche Bank National Trust Company, as Trustee, in trust for
registered Holders of Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2. The Sub-Servicer shall be required to deposit in
the clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Sub-Servicer's receipt thereof, all
proceeds of Mortgage Loans received by the Sub-Servicer less its servicing
compensation to the extent permitted by the Sub-Servicing Agreement, and shall
thereafter deposit such amounts in the Sub-Servicing Account, in no event more
than two Business Days after the deposit of such funds into the clearing
account. The Sub-Servicer shall thereafter be required to deposit such proceeds
in the Collection Account or remit such proceeds to the Master Servicer for
deposit in the Collection Account not later than two Business Days after the
deposit of such amounts in the Sub-Servicing Account. For purposes of this
Agreement, the Master Servicer shall be deemed to have received payments on the
Mortgage Loans when the Sub-Servicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts.
The Master Servicer shall establish and maintain, or cause to be
established and maintained, one or more segregated accounts (the "Servicing
Accounts"). Servicing Accounts shall be Eligible Accounts. The Master Servicer
shall deposit in the clearing account (which account must be an Eligible
Account) in which it customarily deposits payments and collections on mortgage
loans in connection with its mortgage loan servicing activities on a daily
basis, and in no event more than one Business Day after the Master Servicer's
receipt thereof, all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, hazard insurance premiums
and comparable items for the account of the Mortgagors ("Escrow Payments")
collected on account of the Mortgage Loans and shall thereafter deposit such
Escrow Payments in the Servicing Accounts, in no event more than two Business
Days after the deposit of such funds in the clearing account, for the purpose of
effecting
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the payment of any such items as required under the terms of this Agreement.
Withdrawals of amounts from a Servicing Account may be made only to (i) effect
payment of taxes, assessments, hazard insurance premiums, and comparable items;
(ii) reimburse the Master Servicer (or a Sub-Servicer to the extent provided in
the related Sub-Servicing Agreement) out of related collections for any advances
made pursuant to Section 3.01 (with respect to taxes and assessments) and
Section 3.14 (with respect to hazard insurance); (iii) refund to Mortgagors any
sums as may be determined to be overages; (iv) pay interest, if required and as
described below, to Mortgagors on balances in the Servicing Account; (v) clear
and terminate the Servicing Account upon the termination of the Master
Servicer's obligations and responsibilities in respect of the Mortgage Loans
under this Agreement in accordance with Article IX or (vi) recover amounts
deposited in error. As part of its servicing duties, the Master Servicer or
Sub-Servicers shall pay to the Mortgagors interest on funds in Servicing
Accounts, to the extent required by law and, to the extent that interest earned
on funds in the Servicing Accounts is insufficient, to pay such interest from
its or their own funds, without any reimbursement therefor. To the extent that a
Mortgage does not provide for Escrow Payments, the Master Servicer shall
determine whether any such payments are made by the Mortgagor in a manner and at
a time that avoids the loss of the Mortgaged Property due to a tax sale or the
foreclosure of a tax lien. The Master Servicer assumes full responsibility for
the payment of all such bills within such time and shall effect payments of all
such bills irrespective of the Mortgagor's faithful performance in the payment
of same or the making of the Escrow Payments and shall make advances from its
own funds to effect such payments; provided, however, that such advances shall
constitute Servicing Advances.
Section 3.10 Collection Account and Distribution Account.
(a) On behalf of the Trust Fund, the Master Servicer shall establish
and maintain, or cause to be established and maintained, one or more segregated
accounts (such account or accounts, the "Collection Account"), held in trust for
the benefit of the Trustee and the Certificateholders. On behalf of the Trust
Fund, the Master Servicer shall deposit or cause to be deposited in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Master Servicer's receipt thereof, and shall
thereafter deposit in the Collection Account, in no event more than two Business
Days after the deposit of such funds into the clearing account, as and when
received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date or payments (other than Principal Prepayments) received by it
on or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee and the related Prepayment Interest Excess) on each
Mortgage Loan;
(iii) all Insurance Proceeds and Liquidation Proceeds (other than
proceeds collected in respect of any particular REO Property and
amounts paid by
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the Master Servicer in connection with a purchase of Mortgage Loans
and REO Properties pursuant to Section 9.01) and all Gross Subsequent
Recoveries;
(iv) any amounts required to be deposited pursuant to Section
3.12 in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Master Servicer
pursuant to the second paragraph of Section 3.14(a) in respect of any
blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased
in accordance with Section 2.03, Section 3.16(c) or Section 9.01 and
all Master Servicer Prepayment Charge Payment Amounts required to be
deposited in the Collection Account pursuant to Section 2.03;
(vii) all Substitution Adjustments;
(viii) all Prepayment Charges collected by the Master Servicer;
and
(ix) without duplication, all payments of claims received by the
Master Servicer under the PMI Policy, if any.
For purposes of the immediately preceding sentence, the Cut-off Date with
respect to any Qualified Substitute Mortgage Loan shall be deemed to be the date
of substitution.
The foregoing requirements for deposit in the Collection Accounts shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, any Prepayment Interest Excess and payments in the nature of
late payment charges, NSF fees, reconveyance fees, assumption fees and other
similar fees and charges (other than Prepayment Charges) need not be deposited
by the Master Servicer in the Collection Account and shall, upon collection,
belong to the Master Servicer as additional compensation for its servicing
activities. In the event the Master Servicer shall deposit in the Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Collection Account, any provision herein to the
contrary notwithstanding.
(b) On behalf of the Trust Fund, the Trustee shall establish and
maintain one or more segregated accounts (such account or accounts, the
"Distribution Account"), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Master Servicer shall
deliver to the Trustee in immediately available funds for deposit on the same
day in the Distribution Account on or before 3:00 p.m. New York time (i) on the
Master Servicer Remittance Date, that portion of the Available Funds (calculated
without regard to the references in the definition thereof to amounts that may
be withdrawn from the Distribution Account) for the related Distribution Date
then on deposit in the Collection Account, the amount of all Prepayment Charges
on the Prepayment Charge Schedule collected by the Master Servicer in connection
with any of the Mortgage Loans and any Master Servicer Prepayment Charge Payment
Amounts then on deposit in the Collection Account and the amount of any funds
reimbursable to an Advancing Person pursuant to Section 3.27 and (ii) on each
Business Day as
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of the commencement of which the balance on deposit in the Collection Account
exceeds $75,000 following any withdrawals pursuant to the next succeeding
sentence, the amount of such excess, but only if the Collection Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of "Eligible Account." If the balance on deposit in the Collection Account
exceeds $75,000 as of the commencement of business on any Business Day and the
Collection Account constitutes an Eligible Account solely pursuant to clause
(ii) of the definition of "Eligible Account," the Master Servicer shall, on or
before 3:00 p.m. New York time on such Business Day, withdraw from the
Collection Account any and all amounts payable or reimbursable to the Depositor,
the Master Servicer, the Trustee, the Seller or any Sub-Servicer pursuant to
Section 3.11 and shall pay such amounts to the Persons entitled thereto. In
order to comply with its duties under the U.S.A. Patriot Act, the Trustee shall
obtain and verify certain information and documentation from the parties hereto,
including, but not limited to, each party's name, address, and other identifying
information.
(c) Funds in the Collection Account and the Distribution Account may
be invested in Permitted Investments in accordance with the provisions set forth
in Section 3.12. The Master Servicer shall give notice to the Trustee, the NIMS
Insurer, the Depositor and the Rating Agencies of the location of the Collection
Account maintained by it when established and prior to any change thereof. The
Trustee shall give notice to the Master Servicer, the NIMS Insurer, the
Depositor and the Rating Agencies of the location of the Distribution Account
when established and prior to any change thereof.
(d) Funds held in the Collection Account at any time may be delivered
by the Master Servicer to the Trustee for deposit in an account (which may be
the Distribution Account and must satisfy the standards for the Distribution
Account as set forth in the definition thereof) and for all purposes of this
Agreement shall be deemed to be a part of the Collection Account; provided,
however, that the Trustee shall have the sole authority to withdraw any funds
held pursuant to this subsection (d). In the event the Master Servicer shall
deliver to the Trustee for deposit in the Distribution Account any amount not
required to be deposited therein, it may at any time request that the Trustee
withdraw, and the Trustee shall withdraw, such amount from the Distribution
Account and remit to the Master Servicer any such amount, any provision herein
to the contrary notwithstanding. In addition, the Master Servicer shall deliver
to the Trustee from time to time for deposit, and the Trustee shall so deposit,
in the Distribution Account:
(i) any Advances, as required pursuant to Section 4.04, unless
delivered directly to the Trustee by an Advancing Person;
(ii) any amounts required to be deposited pursuant to Section
3.23(d) or (f) in connection with any REO Property;
(iii) any amounts to be paid by the Master Servicer in connection
with a purchase of Mortgage Loans and REO Properties pursuant to
Section 9.01;
(iv) any amounts required to be deposited pursuant to Section
3.24 in connection with any Prepayment Interest Shortfalls; and
(v) any Stayed Funds, as soon as permitted by the federal
bankruptcy court having jurisdiction in such matters.
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(e) Promptly upon receipt of any Stayed Funds, whether from the Master
Servicer, a trustee in bankruptcy, federal bankruptcy court or other source, the
Trustee shall deposit such funds in the Distribution Account, subject to
withdrawal thereof pursuant to Section 7.02(b) or as otherwise permitted
hereunder.
Section 3.11 Withdrawals from the Collection Account and Distribution Account.
(a) The Master Servicer shall, from time to time, make withdrawals
from the Collection Account, for any of the following purposes or as described
in Section 4.04, without priority:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be so remitted pursuant to Section
3.10(b) or permitted to be so remitted pursuant to the first sentence
of Section 3.10(d);
(ii) subject to Section 3.16(d), to reimburse the Master Servicer
for Advances, but only to the extent of amounts received which
represent Late Collections (net of the related Servicing Fees) of
Monthly Payments on the related Mortgage Loans in accordance with the
provisions of Section 4.04;
(iii) subject to Section 3.16(d), to pay the Master Servicer or
any Sub-Servicer (a) any unpaid Servicing Fees or (b) any unreimbursed
Servicing Advances with respect to each Mortgage Loan, but only to the
extent of any Late Collections, Liquidation Proceeds, Insurance
Proceeds, Gross Subsequent Recoveries or other amounts as may be
collected by the Master Servicer from a Mortgagor, or otherwise
received with respect to such Mortgage Loan;
(iv) to pay to the Master Servicer as servicing compensation (in
addition to the Servicing Fee) on the Master Servicer Remittance Date
any interest or investment income earned on funds deposited in the
Collection Account;
(v) to pay to the Master Servicer or the Seller, as the case may
be, with respect to each Mortgage Loan that has previously been
purchased or replaced pursuant to Section 2.03 or Section 3.16(c) all
amounts received thereon subsequent to the date of purchase or
substitution, as the case may be;
(vi) to reimburse the Master Servicer for any Advance or
Servicing Advance previously made which the Master Servicer has
determined to be a Nonrecoverable Advance in accordance with the
provisions of Section 4.04;
(vii) to reimburse the Master Servicer or the Depositor for
expenses incurred by or reimbursable to the Master Servicer or the
Depositor, as the case may be, pursuant to Section 6.03;
(viii) to reimburse the NIMS Insurer, the Master Servicer or the
Trustee, as the case may be, for enforcement expenses reasonably
incurred in respect of the breach or defect giving rise to the
purchase obligation under Section 2.03 of
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this Agreement that were included in the Purchase Price of the
Mortgage Loan, including any expenses arising out of the enforcement
of the purchase obligation; provided, however, that the reimbursement
to the NIMS Insurer pursuant to this clause shall be limited to an
annual amount of $25,000;
(ix) to pay, or to reimburse the Master Servicer for advances in
respect of, expenses incurred in connection with any Mortgage Loan
pursuant to Section 3.16(b); and
(x) to clear and terminate the Collection Account pursuant to
Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on an
individual Mortgage Loan basis, for the purpose of justifying any withdrawal
from the Collection Account, to the extent held by or on behalf of it, pursuant
to subclauses (ii), (iii), (v), (vi), (viii) and (ix) above. The Master Servicer
shall provide written notification to the Trustee and the NIMS Insurer, on or
prior to the next succeeding Master Servicer Remittance Date, upon making any
withdrawals from the Collection Account pursuant to subclause (vii) above.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without priority:
(i) to make distributions to Certificateholders and into the
Supplemental Interest Account and the Final Maturity Reserve Account
in accordance with Section 4.01;
(ii) to pay to itself amounts to which it is entitled pursuant to
Section 8.05 or to pay any other Extraordinary Trust Fund Expenses;
(iii) to pay to itself any interest income earned on funds
deposited in the Distribution Account pursuant to Section 3.12(c);
(iv) to reimburse itself pursuant to Section 7.02 or pursuant to
Section 7.01 to the extent such amounts in Section 7.01 were not
reimbursed by the Master Servicer;
(v) to pay any amounts in respect of taxes pursuant to Section
10.01(g);
(vi) to remit to the Master Servicer any amount deposited in the
Distribution Account by the Master Servicer but not required to be
deposited therein in accordance with Section 3.10(d);
(vii) to pay to an Advancing Person reimbursements for Advances
and/or Servicing Advances pursuant to Section 3.27;
(viii) to clear and terminate the Distribution Account pursuant
to Section 9.01;
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(ix) to pay the PMI Insurer the PMI Insurer Fee based on
information received from the Master Servicer; and
(x) to pay itself the Trustee Fees.
Section 3.12 Investment of Funds in the Collection Account and the Distribution
Account.
(a) The Master Servicer may direct any depository institution
maintaining the Collection Account and any REO Account (for purposes of this
Section 3.12, an "Investment Account"), and the Trustee, in its individual
capacity, may direct any depository institution maintaining the Distribution
Account (for purposes of this Section 3.12, the Distribution Account is also an
"Investment Account"), to invest the funds in such Investment Account in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if a Person other than the Trustee is the
obligor thereon and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the Trustee is
the obligor thereon. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment Account shall
be made in the name of the Trustee (in its capacity as such), or in the name of
a nominee of the Trustee. The Trustee shall be entitled to sole possession
(except with respect to investment direction of funds held in the Collection
Account and any REO Account and any income and gain realized thereon) over each
such investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Trustee or its agent, together
with any document of transfer necessary to transfer title to such investment to
the Trustee or its nominee. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Trustee shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
actual notice by a Responsible Officer of the Trustee that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and any REO Account held by or on behalf of
the Master Servicer shall be for the benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.11 or Section 3.23, as
applicable. The Master Servicer shall deposit in the Collection Account or any
REO Account, as applicable, from its own funds, the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
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(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by or on behalf of the Trustee shall
be for the benefit of the Trustee and shall be subject to its withdrawal at any
time. The Trustee shall deposit in the Distribution Account, from its own funds,
the amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of such
loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.01 and Section 8.02(v),
upon the request of the Holders of Certificates representing more than 50% of
the Voting Rights allocated to any Class of Certificates shall, take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
Section 3.13 Reserved.
Section 3.14 Maintenance of Hazard Insurance and Errors and Omissions and
Fidelity Coverage.
(a) The Master Servicer shall cause to be maintained for each Mortgage
Loan fire insurance with extended coverage on the related Mortgaged Property in
an amount which is at least equal to the least of (i) the then current principal
balance of such Mortgage Loan, (ii) the amount necessary to fully compensate for
any damage or loss to the improvements that are a part of such property on a
replacement cost basis and (iii) the maximum insurable value of the improvements
which are a part of such Mortgaged Property, in each case in an amount not less
than such amount as is necessary to avoid the application of any coinsurance
clause contained in the related hazard insurance policy. The Master Servicer
shall also cause to be maintained fire insurance with extended coverage on each
REO Property in an amount which is at least equal to the lesser of (i) the
maximum insurable value of the improvements which are a part of such property
and (ii) the outstanding principal balance of the related Mortgage Loan at the
time it became an REO Property, plus accrued interest at the Mortgage Rate and
related Servicing Advances. The Master Servicer will comply in the performance
of this Agreement with all reasonable rules and requirements of each insurer
under any such hazard policies. Any amounts to be collected by the Master
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Master Servicer would follow in servicing loans held for its own account,
subject to the terms and conditions of the related Mortgage and Mortgage Note)
shall be deposited in the Collection Account, subject to withdrawal pursuant to
Section 3.11, if received in respect of a Mortgage Loan, or in the REO Account,
subject to withdrawal pursuant to Section 3.23, if received in respect of an REO
Property. Any cost incurred by the Master Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no earthquake or other additional insurance is
to be required of any Mortgagor other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property or REO Property is at any time
in an area identified in the Federal Register by the Federal
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Emergency Management Agency as having special flood hazards and flood insurance
has been made available, the Master Servicer will cause to be maintained a flood
insurance policy in respect thereof. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan and (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program (assuming that the
area in which such Mortgaged Property is located is participating in such
program).
In the event that the Master Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy Rating of A:X or better in Best's
Key Rating Guide (or such other rating that is comparable to such rating)
insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first two sentences of this Section 3.14, it being understood and agreed that
such policy may contain a deductible clause, in which case the Master Servicer
shall, in the event that there shall not have been maintained on the related
Mortgaged Property or REO Property a policy complying with the first two
sentences of this Section 3.14, and there shall have been one or more losses
which would have been covered by such policy, deposit to the Collection Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees to
prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
(b) The Master Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Master Servicer's obligations under this
Agreement, which policy or policies shall be in such form and amount that would
meet the requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of
the Mortgage Loans, unless the Master Servicer or any of its Affiliates has
obtained a waiver of such Xxxxxx Mae or Xxxxxxx Mac requirements from either
Xxxxxx Mae or Xxxxxxx Mac. The Master Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of Xxxxxx Mae or
Xxxxxxx Mac, unless the Master Servicer or any of its Affiliates has obtained a
waiver of such Xxxxxx Mae or Xxxxxxx Mac requirements from either Xxxxxx Mae or
Xxxxxxx Mac. The Master Servicer shall provide the Trustee and the NIMS Insurer
(upon such party's reasonable request) with copies of any such insurance
policies and fidelity bond. The Master Servicer shall be deemed to have complied
with this provision if an Affiliate of the Master Servicer has such errors and
omissions and fidelity bond coverage and, by the terms of such insurance policy
or fidelity bond, the coverage afforded thereunder extends to the Master
Servicer. Any such errors and omissions policy and fidelity bond shall by its
terms not be cancelable without thirty days' prior written notice to the
Trustee. The Master Servicer shall also cause each Sub-Servicer to maintain a
comparable policy of insurance covering errors and omissions and a fidelity bond
meeting such requirements.
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
The Master Servicer shall, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the
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maturity of such Mortgage Loan under the "due-on-sale" clause, if any,
applicable thereto; provided, however, that the Master Servicer shall not be
required to take such action if in its sole business judgment the Master
Servicer believes that the collections and other recoveries in respect of such
Mortgage Loans could reasonably be expected to be maximized if the Mortgage Loan
were not accelerated, and the Master Servicer shall not exercise any such rights
if prohibited by law from doing so. If the Master Servicer reasonably believes
it is unable under applicable law to enforce such "due-on-sale" clause, or if
any of the other conditions set forth in the proviso to the preceding sentence
apply, the Master Servicer will enter into an assumption and modification
agreement from or with the person to whom such property has been conveyed or is
proposed to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. The Master Servicer may also enter into a
substitution of liability agreement with such person, pursuant to which the
original Mortgagor is released from liability and such person is substituted as
the Mortgagor and becomes liable under the Mortgage Note, provided that no such
substitution shall be effective unless such person satisfies the underwriting
criteria of the Master Servicer and has a credit risk rating at least equal to
that of the original Mortgagor. In connection with any assumption, modification
or substitution, the Master Servicer shall apply such underwriting standards and
follow such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. The Master Servicer shall not take or enter into any assumption
and modification agreement, however, unless (to the extent practicable under the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy, or a new policy meeting
the requirements of this Section is obtained. Any fee collected by the Master
Servicer in respect of any assumption, modification or substitution of liability
agreement will be retained by the Master Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Rate and the
amount of the Monthly Payment) may be amended or modified, except as otherwise
required pursuant to the terms thereof. The Master Servicer shall notify the
Trustee and the NIMS Insurer that any such substitution, modification or
assumption agreement has been completed by forwarding to the Trustee (with a
copy to the NIMS Insurer) the executed original of such substitution,
modification or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Master Servicer may be restricted by law from preventing,
for any reason whatever. For purposes of this Section 3.15, the term
"assumption" is deemed to also include a sale of the Mortgaged Property subject
to the Mortgage that is not accompanied by an assumption or substitution of
liability agreement.
Section 3.16 Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts consistent with
the servicing standard set forth in Section 3.01, to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in
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default and as to which no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 3.07. The Master Servicer shall be
responsible for all costs and expenses incurred by it in any such proceedings;
provided, however, that such costs and expenses will constitute and be
recoverable as Servicing Advances by the Master Servicer as contemplated in
Section 3.11 and Section 3.23. The foregoing is subject to the provision that,
in any case in which Mortgaged Property shall have suffered damage from an
Uninsured Cause, the Master Servicer shall not be required to expend its own
funds toward the restoration of such property unless it shall determine in its
sole and absolute discretion that such restoration will increase the proceeds of
liquidation of the related Mortgage Loan after reimbursement to itself for such
expenses.
(b) Notwithstanding the foregoing provisions of this Section 3.16 or
any other provision of this Agreement, with respect to any Mortgage Loan as to
which the Master Servicer has received actual notice of, or has actual knowledge
of, the presence of any toxic or hazardous substance on the related Mortgaged
Property, the Master Servicer shall not, on behalf of the Trustee, either (i)
obtain title to such Mortgaged Property as a result of or in lieu of foreclosure
or otherwise or (ii) otherwise acquire possession of, or take any other action
with respect to, such Mortgaged Property, if, as a result of any such action,
the Trustee, the Trust Fund or the Certificateholders would be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time, or any comparable law, unless the Master Servicer has also
previously determined, based on its reasonable judgment and a report prepared by
an Independent Person who regularly conducts environmental audits using
customary industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based
materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any federal, state or
local law or regulation, or that if any such materials are present for
which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect
to the affected Mortgaged Property.
Notwithstanding the foregoing, with respect to the Mortgage Loans, if such
environmental audit reveals, or if the Master Servicer has knowledge or notice,
that the Mortgaged Property securing the Mortgage Loan contains such wastes or
substances or is within one mile of the site of such wastes or substances, the
Master Servicer shall not foreclose or accept a deed in lieu of foreclosure
without the prior written consent of the NIMS Insurer.
The cost of the environmental audit report contemplated by this Section
3.16 shall be advanced by the Master Servicer, subject to the Master Servicer's
right to be reimbursed therefor from the Collection Account as provided in
Section 3.11(a)(ix), such right of reimbursement
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being prior to the rights of Certificateholders to receive any amount in the
Collection Account received in respect of the affected Mortgage Loan or other
Mortgage Loans. It is understood by the parties hereto that any such advance
will constitute a Servicing Advance.
If the Master Servicer determines, as described above, that it is in the
best economic interest of the Trust Fund to take such actions as are necessary
to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Master Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Master Servicer,
subject to the Master Servicer's right to be reimbursed therefor from the
Collection Account as provided in Section 3.11(a)(ix), such right of
reimbursement being prior to the rights of Certificateholders to receive any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans. It is understood by the parties hereto that any
such advance will constitute a Servicing Advance.
(c) The Holder of the Class C Certificates (except if such Holder is
the Seller or any of its Affiliates) may at its option purchase from REMIC 1 any
Mortgage Loan or related REO Property that is 90 days or more delinquent or that
has been otherwise in default for 90 days or more, which such Holder determines
in good faith will otherwise become subject to foreclosure proceedings (evidence
of such determination to be delivered in writing to the Trustee prior to
purchase), at a price equal to the Purchase Price; provided, however, that the
Holder of the Class C Certificates shall purchase any such Mortgage Loans or
related REO Properties on the basis of delinquency or default, purchasing first
the Mortgage Loans or related REO Properties that became delinquent or otherwise
in default on an earlier date. In the event the Holder of the Class C
Certificates does not exercise its option to purchase from REMIC 1 any such
Mortgage Loan or related REO Property, the Master Servicer may at its option
purchase from REMIC 1 any such Mortgage Loan or related REO Property, at a price
equal to the Purchase Price; provided, however, that the Master Servicer shall
purchase any such Mortgage Loans or related REO Properties on the basis of
delinquency or default, purchasing first the Mortgage Loans or related REO
Properties that became delinquent or otherwise in default on an earlier date;
and provided, further, that such option shall expire as of the last day of the
calendar quarter during which such Mortgage Loan or related REO Property became
90 days delinquent or otherwise in default for 90 days or more. In the event the
Master Servicer does not exercise its option to purchase from REMIC 1 any such
Mortgage Loan or related REO Property prior to the expiration of such option,
the NIMS Insurer shall be entitled to purchase such Mortgage Loan or related REO
Property; provided, however, that the NIM Insurer shall purchase any such
Mortgage Loans or related REO Properties on the basis of delinquency or default,
purchasing first the Mortgage Loans or related REO Properties that became
delinquent or otherwise in default on an earlier date. The Purchase Price for
any Mortgage Loan or related REO Property purchased hereunder shall be deposited
in the Collection Account, and the Trustee, upon receipt of written
certification from the Master Servicer of such deposit, shall release or cause
to be released to the Holder of the Class C Certificates, the Master Servicer or
the NIMS Insurer, as applicable, the related Mortgage File and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as the Holder of the Class C Certificates, the Master Servicer
or the NIMS Insurer, as applicable, shall furnish and as shall be necessary to
vest in the Holder of the Class C Certificates, the Master Servicer or the NIMS
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Insurer, as applicable, title to any Mortgage Loan or related REO Property
released pursuant hereto.
(d) Proceeds received (other than any Prepayment Charges received) in
connection with any Final Recovery Determination, as well as any recovery
resulting from a partial collection of Insurance Proceeds, Liquidation Proceeds
or Gross Subsequent Recoveries, in respect of any Mortgage Loan, will be applied
in the following order of priority: first, to reimburse the Master Servicer or
any Sub-Servicer for any related unreimbursed Servicing Advances and Advances,
pursuant to Section 3.11(a)(ii) or (a)(iii); second, to accrued and unpaid
interest on the Mortgage Loan, to the date of the Final Recovery Determination,
or to the Due Date prior to the Distribution Date on which such amounts are to
be distributed if not in connection with a Final Recovery Determination; and
third, as a recovery of principal of the Mortgage Loan. If the amount of the
recovery so allocated to interest is less than the full amount of accrued and
unpaid interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Master Servicer as follows: first, to unpaid Servicing Fees;
and second, to the balance of the interest then due and owing. The portion of
the recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
Master Servicer or any Sub-Servicer pursuant to Section 3.11(a)(iii).
Section 3.17 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer will promptly notify
the Trustee and the applicable Custodian holding the related Mortgage File by a
certification in the form of Exhibit E-2 (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.10 have been or will be so deposited)
of a Servicing Representative and shall request delivery to it of the related
Mortgage File. Upon receipt of such certification and request, the Trustee or
such Custodian, as applicable, shall promptly release the related Mortgage File
to the Master Servicer. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account or the Distribution Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trustee or the
applicable Custodian shall, upon request of the Master Servicer and delivery to
the Trustee or the applicable Custodian of a Request for Release in the form of
Exhibit E-l, release the related Mortgage File to the Master Servicer, and the
Trustee or the applicable Custodian, on behalf of the Trustee, shall, at the
direction of the Master Servicer, execute such documents as shall be necessary
to the prosecution of any such proceedings and the Master Servicer shall retain
such Mortgage File in trust for the benefit of the Certificateholders. Such
Request for Release shall obligate the Master Servicer to return each and every
document previously requested from the Mortgage File to the Trustee or the
applicable Custodian when the need therefor by the Master Servicer no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Collection
Account or the Mortgage File or such document has been delivered to an attorney,
or to a public trustee or other public official as required by law, for purposes
of initiating or
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pursuing legal action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or non-judicially, and the Master Servicer has
delivered to the Trustee or the applicable Custodian a certificate of a
Servicing Representative certifying as to the name and address of the Person to
which such Mortgage File or such document was delivered and the purpose or
purposes of such delivery. Upon receipt of a certificate of a Servicing
Representative stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Collection Account have been so deposited, or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Trustee or the applicable Custodian to the
Master Servicer or its designee.
(c) At the direction of the Master Servicer and upon written
certification of a Servicing Representative, each of the Trustee or the
applicable Custodian shall execute and deliver to the Master Servicer any court
pleadings, requests for trustee's sale or other documents reasonably necessary
to the foreclosure or trustee's sale in respect of a Mortgaged Property or to
any legal action brought to obtain judgment against any Mortgagor on the
Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce any
other remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity, or shall execute and deliver to the Master
Servicer a power of attorney sufficient to authorize the Master Servicer or the
Sub-Servicer to execute such documents on its behalf, provided that each of the
Trustee or the applicable Custodian shall be obligated to execute the documents
identified above if necessary to enable the Master Servicer or the Sub-Servicer
to perform their respective duties hereunder or under the Sub-Servicing
Agreement. Each such certification shall include a request that such pleadings
or documents be executed by the Trustee or the applicable Custodian and a
statement as to the reason such documents or pleadings are required.
(d) If any Mortgage Loan is repurchased, substituted or purchased in
accordance with Section 2.03, Section 3.16(c) or Section 9.01, the Trustee shall
execute and deliver the Mortgage Loan Assignment Agreement in the form of
Exhibit E-3 with respect to such Mortgage Loan, transferring such Mortgage Loan
to the Person entitled thereto pursuant to such Section 2.03, Section 3.16(c) or
Section 9.01, as applicable.
Section 3.18 Servicing Compensation.
As compensation for the activities of the Master Servicer hereunder, the
Master Servicer shall be entitled to the Servicing Fee with respect to each
Mortgage Loan payable solely from payments of interest in respect of such
Mortgage Loan, subject to Section 3.24. In addition, the Master Servicer shall
be entitled to recover unpaid Servicing Fees out of Late Collections, Insurance
Proceeds, Liquidation Proceeds or Gross Subsequent Recoveries to the extent
permitted by Section 3.11(a)(iii) and out of amounts derived from the operation
and sale of an REO Property to the extent permitted by Section 3.23. The right
to receive the Servicing Fee may not be transferred in whole or in part except
in connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement; provided, however, that the Master
Servicer may pay from the Servicing Fee any amounts due to a Sub-Servicer
pursuant to a Sub-Servicing Agreement entered into under Section 3.02.
Additional servicing compensation in the form of Prepayment Interest
Excess, assumption or modification fees, late payment charges, NSF fees,
reconveyance fees and other
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similar fees and charges (other than Prepayment Charges) shall be retained by
the Master Servicer only to the extent such fees or charges are received by the
Master Servicer. The Master Servicer shall also be entitled pursuant to Section
3.11(a)(iv) to withdraw from the Collection Account, and pursuant to Section
3.23(b) to withdraw from any REO Account, as additional servicing compensation,
interest or other income earned on deposits therein, subject to Section 3.12.
The Master Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including premiums for the
insurance required by Section 3.14, to the extent such premiums are not paid by
the related Mortgagors or by a Sub-Servicer, it being understood however, that
payment of such premiums by the Master Servicer shall constitute Servicing
Advances and servicing compensation of each Sub-Servicer, and to the extent
provided herein and in Section 8.05, the fees and expenses of the Trustee) and
shall not be entitled to reimbursement therefor except as specifically provided
herein.
Section 3.19 Reports to the Trustee; Collection Account Statements.
Not later than fifteen days after each Distribution Date, the Master
Servicer shall forward to the Trustee, the NIMS Insurer and the Depositor a
statement prepared by the Master Servicer setting forth the status of the
Collection Account as of the close of business on such Distribution Date and
showing, for the period covered by such statement, the aggregate amount of
deposits into and withdrawals from the Collection Account of each category of
deposit specified in Section 3.10(a) and each category of withdrawal specified
in Section 3.11. Such statement may be in the form of the then current Xxxxxx
Xxx Monthly Accounting Report for its Guaranteed Mortgage Pass-Through Program
with appropriate additions and changes, and shall also include information as to
the aggregate of the outstanding principal balances of all of the Mortgage Loans
as of the last day of the calendar month immediately preceding such Distribution
Date. Copies of such statement shall be provided by the Trustee to any
Certificateholder and to any Person identified to the Trustee as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party, provided such statement is delivered by the Master Servicer to the
Trustee.
Section 3.20 Statement as to Compliance.
The Master Servicer shall deliver to the Trustee, the Depositor, the NIMS
Insurer and each Rating Agency on or before March 10 of each calendar year prior
to and including the calendar year in which a Form 15 is filed with respect to
the Trust Fund and April 30 of each calendar year thereafter, an Officers'
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Master Servicer during the preceding year and of performance
under this Agreement has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Master Servicer
has fulfilled all of its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. Copies of any such statement shall be provided by the Trustee to any
Certificateholder and to any Person identified to the Trustee as a prospective
transferee of a Certificate, upon the request and at the expense of the
requesting party, provided that such statement is delivered by the Master
Servicer to the Trustee.
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Section 3.21 Independent Public Accountants' Servicing Report.
Not later than March 10 of each calendar year prior to and including the
calendar year in which a Form 15 is filed with respect to the Trust Fund and
April 30 of each calendar year thereafter, the Master Servicer, at its expense,
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Master Servicer a report stating that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Master Servicer which includes an assertion that the Master
Servicer has complied with certain minimum residential mortgage loan servicing
standards, identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with respect
to the servicing of residential mortgage loans during the most recently
completed fiscal year and (ii) on the basis of an examination conducted by such
firm in accordance with standards established by the American Institute of
Certified Public Accountants, such representation is fairly stated in all
material respects, subject to such exceptions and other qualifications that may
be appropriate. In rendering its report such firm may rely, as to matters
relating to the direct servicing of residential mortgage loans by Sub-Servicers,
upon comparable reports of firms of independent certified public accountants
rendered on the basis of examinations conducted in accordance with the same
standards (rendered within one year of such report) with respect to those
Sub-Servicers. Immediately upon receipt of such report, the Master Servicer
shall furnish a copy of such report to the Trustee, the NIMS Insurer and each
Rating Agency. Copies of such statement shall be provided by the Trustee to any
Certificateholder upon request at the Master Servicer's expense, provided that
such statement is delivered by the Master Servicer to the Trustee. In the event
such firm of independent certified public accountants requires the Trustee to
agree to the procedures performed by such firm, the Master Servicer shall direct
the Trustee in writing to so agree; it being understood and agreed that the
Trustee will deliver such letter of agreement in conclusive reliance upon the
direction of the Master Servicer, and the Trustee has not made any independent
inquiry or investigation as to, and shall have no obligation or liability in
respect of, the sufficiency, validity or correctness of such procedures.
Section 3.22 Access to Certain Documentation.
The Master Servicer shall provide to the Office of Thrift Supervision,
the FDIC and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder access to the
documentation regarding the Mortgage Loans serviced by the Master Servicer under
this Agreement, as may be required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Master Servicer designated by
it. In addition, access to the documentation regarding the Mortgage Loans
serviced by the Master Servicer under this Agreement will be provided to any
Certificateholder, the NIMS Insurer, the Trustee and to any Person identified to
the Master Servicer as a prospective transferee of a Certificate, upon
reasonable request during normal business hours at the offices of the Master
Servicer designated by it at the expense of the Person requesting such access.
Section 3.23 Title, Management and Disposition of REO Property.
(a) The deed or certificate of sale of any REO Property shall be taken
in the name of the Trustee, or its nominee, in trust for the benefit of the
Certificateholders. The Master
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Servicer, on behalf of REMIC 1 (and on behalf of the Trustee for the benefit of
the Certificateholders), shall sell any REO Property as soon as practicable and,
in any event, shall either sell any REO Property before the close of the third
taxable year after the year REMIC 1 acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code or request from the Internal Revenue
Service, no later than 60 days before the day on which the three-year grace
period would otherwise expire, an extension of the three-year grace period,
unless the Master Servicer shall have delivered to the Trustee, the NIMS Insurer
and the Depositor an Opinion of Counsel, addressed to the Trustee, the NIMS
Insurer and the Depositor, to the effect that the holding by REMIC 1 of such REO
Property subsequent to three years after its acquisition will not result in the
imposition on any Trust REMIC of taxes on "prohibited transactions" thereof, as
defined in Section 860F of the Code, or cause any Trust REMIC to fail to qualify
as a REMIC under Federal law at any time that any Certificates are outstanding.
If an extension of the three-year period is granted, the Master Servicer shall
sell the related REO Property no later than 60 days prior to the expiration of
such extension period. The Master Servicer shall manage, conserve, protect and
operate each REO Property for the Certificateholders solely for the purpose of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any Trust REMIC of
any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code, or any "net income from foreclosure property" which
is subject to taxation under the REMIC Provisions.
(b) The Master Servicer shall segregate and hold all funds collected
and received in connection with the operation of any REO Property separate and
apart from its own funds and general assets and shall establish and maintain, or
cause to be established and maintained, with respect to REO Properties an
account held in trust for the Trustee for the benefit of the Certificateholders
(the "REO Account"), which shall be an Eligible Account. The Master Servicer may
allow the Collection Account to serve as the REO Account, subject to separate
ledgers for each REO Property. The Master Servicer may retain or withdraw any
interest income paid on funds deposited in the REO Account.
(c) The Master Servicer shall have full power and authority, subject
only to the specific requirements and prohibitions of this Agreement, to do any
and all things in connection with any REO Property as are consistent with the
manner in which the Master Servicer manages and operates similar property owned
by the Master Servicer or any of its Affiliates, all on such terms and for such
period as the Master Servicer deems to be in the best interests of
Certificateholders. In connection therewith, the Master Servicer shall deposit,
or cause to be deposited in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Master
Servicer's receipt thereof and shall thereafter deposit in the REO Account, in
no event more than two Business Days after the deposit of such funds into the
clearing account, all revenues received by it with respect to an REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of such REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
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(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with respect to an
REO Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Master Servicer shall advance
from its own funds as Servicing Advances such amount as is necessary for such
purposes if, but only if, the Master Servicer would make such advances if the
Master Servicer owned the REO Property and if such Servicing Advance would not
constitute a Nonrecoverable Advance.
Notwithstanding the foregoing, neither the Master Servicer nor the Trustee
shall:
(i) authorize the Trust Fund to enter into, renew or extend any
New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) authorize any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize any construction on any REO Property, other than
construction permitted under Section 856(e)(4)(B) of the Code; or
(iv) authorize any Person to Directly Operate any REO Property on
any date more than 90 days after its date of acquisition by the Trust
Fund;
unless, in any such case, the Master Servicer has obtained an Opinion of Counsel
(the cost of which shall constitute a Servicing Advance), a copy of which shall
be provided to the NIMS Insurer and the Trustee, to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code at any time that it is held
by REMIC 1, in which case the Master Servicer may take such actions as are
specified in such Opinion of Counsel.
The Master Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above, and remit all related revenues
(net of such costs and expenses) to the Master Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
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(iii) none of the provisions of this Section 3.23(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Master Servicer of any of
its duties and obligations to the Trustee on behalf of the
Certificateholders with respect to the operation and management of any
such REO Property; and
(iv) the Master Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
REO Property.
The Master Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Master Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. The Master Servicer shall be solely liable for
all fees owed by it to any such Independent Contractor, irrespective of whether
the Master Servicer's compensation pursuant to Section 3.18 is sufficient to pay
such fees; provided, however, that to the extent that any payments made by such
Independent Contractor would constitute Servicing Advances if made by the Master
Servicer, such amounts shall be reimbursable as Servicing Advances made by the
Master Servicer.
(d) In addition to the withdrawals permitted under Section 3.23(c),
the Master Servicer may from time to time make withdrawals from the REO Account
for any REO Property: (i) to pay itself or any Sub-Servicer unpaid Servicing
Fees in respect of the related Mortgage Loan; and (ii) to reimburse itself or
any Sub-Servicer for unreimbursed Servicing Advances and Advances made in
respect of such REO Property or the related Mortgage Loan. On the Master
Servicer Remittance Date, the Master Servicer shall withdraw from each REO
Account maintained by it and deposit into the Distribution Account in accordance
with Section 3.10(d)(ii), for distribution on the related Distribution Date in
accordance with Section 4.01, the income from the related REO Property received
during the prior calendar month, net of any withdrawals made pursuant to Section
3.23(c) or this Section 3.23(d).
(e) Subject to the time constraints set forth in Section 3.23(a), each
REO Disposition shall be carried out by the Master Servicer at such price and
upon such terms and conditions as the Master Servicer shall deem necessary or
advisable, as shall be normal and usual in its general servicing activities for
similar properties.
(f) The proceeds from the REO Disposition, net of any amount required
by law to be remitted to the Mortgagor under the related Mortgage Loan and net
of any payment or reimbursement to the Master Servicer or any Sub-Servicer as
provided above, shall be deposited in the Distribution Account in accordance
with Section 3.10(d)(ii) on the Master Servicer Remittance Date in the month
following the receipt thereof for distribution on the related Distribution Date
in accordance with Section 4.01. Any REO Disposition shall be for cash only
(unless changes in the REMIC Provisions made subsequent to the Startup Day allow
a sale for other consideration).
(g) The Master Servicer shall file information returns with respect to
the receipt of mortgage interest received in a trade or business, reports of
foreclosures and abandonments of any Mortgaged Property and cancellation of
indebtedness income with respect
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to any Mortgaged Property as required by Sections 6050H, 6050J and 6050P of the
Code, respectively. Such reports shall be in form and substance sufficient to
meet the reporting requirements imposed by such Sections 6050H, 6050J and 6050P
of the Code.
Section 3.24 Obligations of the Master Servicer in Respect of Prepayment
Interest Shortfalls.
The Master Servicer shall deliver to the Trustee for deposit into the
Distribution Account on or before 3:00 p.m. New York time on the Master Servicer
Remittance Date from its own funds an amount ("Compensating Interest") equal to
the lesser of (i) the aggregate of the Prepayment Interest Shortfalls for the
related Distribution Date resulting solely from Principal Prepayments during the
related Prepayment Period and (ii) the amount of its aggregate Servicing Fee for
the most recently ended calendar month.
Section 3.25 Obligations of the Master Servicer in Respect of Mortgage Rates and
Monthly Payments.
In the event that a shortfall in any collection on or liability with
respect to any Mortgage Loan results from or is attributable to adjustments to
Mortgage Rates, Monthly Payments or Stated Principal Balances that were made by
the Master Servicer in a manner not consistent with the terms of the related
Mortgage Note and this Agreement, the Master Servicer, upon discovery or receipt
of notice thereof, immediately shall deliver to the Trustee for deposit in the
Distribution Account from its own funds the amount of any such shortfall and
shall indemnify and hold harmless the Trust Fund, the Trustee, the Depositor and
any successor master servicer in respect of any such liability. Such indemnities
shall survive the termination or discharge of this Agreement. Notwithstanding
the foregoing, this Section 3.25 shall not limit the ability of the Master
Servicer to seek recovery of any such amounts from the related Mortgagor under
the terms of the related Mortgage Note, as permitted by law and shall not be an
expense of the Trust.
Section 3.26 Reserve Fund.
No later than the Closing Date, the Trustee, on behalf of the
Certificateholders, shall establish and maintain with itself a separate,
segregated non-interest bearing trust account titled, "Reserve Fund, Deutsche
Bank National Trust Company, as Trustee, in trust for registered Holders of Long
Beach Mortgage Loan Trust 2005-WL2, Asset-Backed Certificates, Series 2005-WL2."
The Trustee shall account for the right to receive payments from the Reserve
Fund as property that the Trustee holds separate and apart from the REMIC
Regular Interests.
(a) The following amounts shall be deposited into the Reserve Fund:
(i) On each Distribution Date, the Trustee shall deposit all
amounts received with respect to the Cap Agreements;
(ii) On the Closing Date, the Depositor shall deposit, or cause
to be deposited, into the Reserve Fund $1,000;
(iii) On each Distribution Date as to which there is a Net WAC
Rate Carryover Amount payable to any of the Class A Certificates, the
Mezzanine Certificates or the Class B Certificates, the Trustee has
been directed by the
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Holders of the Class C Certificates to, and therefore shall, deposit
into the Reserve Fund the amounts described in Section 4.01(d)(i)(ss);
and
(iv) On each Distribution Date as to which there are no Net WAC
Rate Carryover Amounts, the Trustee shall deposit into the Reserve
Fund on behalf of the Holders of the Class C Certificates, from
amounts otherwise distributable to such Class C Certificates, an
amount such that when added to other amounts already on deposit in the
Reserve Fund, the aggregate amount on deposit therein is equal to
$1,000.
(b) The Reserve Fund shall be segregated into two separate portions,
for which the Trustee shall keep separate accounts. "Portion 1" of the Reserve
Fund shall consist of amounts deposited pursuant to Section 3.26(a)(i), above,
plus any amounts earned on any such funds while on deposit in the Reserve Fund.
"Portion 2" of the Reserve Fund shall consist of amounts deposited pursuant to
Sections 3.26(a)(ii), (a)(iii), and (a)(iv), above, plus any amounts earned on
any such funds while on deposit in the Reserve Fund. Amounts distributed from
the Reserve Fund under Sections 4.01(d)(ii) and 3.26(c) shall be deemed to be
distributed first from Portion 1 of the Reserve Fund to the extent thereof and
then from Portion 2.
(c) Each Portion of the Reserve Fund shall be treated as an "outside
reserve fund" under applicable Treasury regulations and shall not be part of any
REMIC created hereunder. For federal and state income tax purposes, the Trustee
shall be deemed to be the owner of Portion 1 of the Reserve Fund and no amount
shall be transferred by any REMIC to Portion 1 of the Reserve Fund. For federal
and state income tax purposes, the Holders of the Class C Certificates shall be
deemed to be the owners of Portion 2 of the Reserve Fund and all amounts
deposited into Portion 2 of the Reserve Fund (other than the initial deposit
therein of $1,000) shall be treated as amounts distributed by REMIC 4 to REMIC
CX in respect of the Class C Interest, and then distributed by REMIC CX to the
Holders of the Class C Certificates. For federal and state income tax purposes,
payments in respect of the Class A Certificates, the Mezzanine Certificates and
the Class B Certificates of Net WAC Rate Carryover Amounts will not be payments
with respect to a "regular interest" in a REMIC within the meaning of Code
Section 860G(a)(1).
(d) By accepting a Class C Certificate, each Holder of a Class C
Certificate shall be deemed to have directed the Trustee to, and the Trustee
shall pursuant to such direction, deposit into the Reserve Fund the amounts
described in Section 3.26(a)(iii) and (a)(iv) above on each Distribution Date.
By accepting a Class C Certificate, each Holder of a Class C Certificate further
agrees that such direction is given for good and valuable consideration, the
receipt and sufficiency of which is acknowledged by such acceptance.
(e) At the direction of the Holders of a majority in Percentage
Interest in the Class C Certificates, the Trustee shall direct any depository
institution maintaining Portion 2 of the Reserve Fund to invest the funds in
such account in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, (i) no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the Trustee or an Affiliate manages or advises such investment, and (ii) no
later than the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if the Trustee
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or an Affiliate manages or advises such investment. If no investment direction
of the Holders of a majority in Percentage Interest in the Class C Certificates
with respect to Portion 2 of the Reserve Fund is received by the Trustee, the
Trustee shall invest the funds in Portion 2 of the Reserve Fund in Permitted
Investments managed by the Trustee or an Affiliate of the kind described in
clause (vi) of the definition of Permitted Investments. Notwithstanding the
foregoing, any funds in Portion 2 of the Reserve Fund shall be invested in
Deutsche Bank Cash Management Fund 541 for so long as such investment complies
with clause (vi) of the definition of Permitted Investments. All income and gain
earned upon such investment shall be deposited into Portion 2 of the Reserve
Fund. The Trustee shall hold the funds in Portion 1 of the Reserve Fund
uninvested in an Eligible Account.
(f) For federal tax return and information reporting, the right of the
Certificateholders to receive payment on account of the Class A Certificates,
the Mezzanine Certificates and the Class B Certificates from the Reserve Fund in
respect of any Net WAC Rate Carryover Amount shall be assigned a value of zero.
Section 3.27 Advance Facility.
(a) The Trustee, on behalf of the Trust Fund, at the direction of the
Master Servicer and with the consent of the NIMS Insurer, is hereby authorized
to enter into a facility with any Person which provides that such Person (an
"Advancing Person") may make all or a portion of the Advances and/or Servicing
Advances to the Trust Fund under this Agreement, although no such facility shall
reduce or otherwise affect the Master Servicer's obligation to fund such
Advances and/or Servicing Advances. To the extent that an Advancing Person makes
all or a portion of any Advance or any Servicing Advance and provides the
Trustee with notice acknowledged by the Master Servicer that such Advancing
Person is entitled to reimbursement, such Advancing Person shall be entitled to
receive reimbursement pursuant to this Agreement for such amount to the extent
provided in Section 3.27(b). Such notice from the Advancing Person shall specify
the amount of the reimbursement and shall specify which Section of this
Agreement permits the applicable Advance or Servicing Advance to be reimbursed.
The Trustee shall be entitled to rely without independent investigation on the
Advancing Person's statement with respect to the amount of any reimbursement
pursuant to this Section 3.27 and with respect to the Advancing Person's
statement with respect to the Section of this Agreement that permits the
applicable Advance or Servicing Advance to be reimbursed. An Advancing Person
whose obligations are limited to the making of Advances and/or Servicing
Advances shall not be required to meet the qualifications of a Master Servicer
or a Sub-Servicer pursuant to Article VI hereof and will not be deemed to be a
Sub-Servicer under this Agreement. If the terms of a facility proposed to be
entered into with an Advancing Person by the Trust Fund would not materially and
adversely affect the interests of any Certificateholder, then the NIMS Insurer
shall not withhold its consent to the Trust Fund's entering into such facility.
(b) If an advancing facility is entered into, then the Master Servicer
shall not be permitted to reimburse itself under any Section specified or for
any amount specified by the Advancing Person in the notice described under
Section 3.27(a) above and acknowledged by the Master Servicer prior to the
remittance to the Trust Fund, but instead the Master Servicer shall include such
amounts in the applicable remittance to the Trustee made pursuant to Section
3.10(a). The Trustee is hereby authorized to pay to the Advancing Person
reimbursements for Advances and Servicing Advances from the Distribution Account
to the same extent the Master
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Servicer would have been permitted to reimburse itself for such Advances and/or
Servicing Advances in accordance with the specified Sections had the Master
Servicer itself made such Advance or Servicing Advance. The Trustee is hereby
authorized to pay directly to the Advancing Person such portion of the Servicing
Fee as the parties to any advancing facility may agree.
(c) All Advances and Servicing Advances made pursuant to the terms of
this Agreement shall be deemed made and shall be reimbursed on a "first in-first
out" (FIFO) basis.
Section 3.28 PMI Policy; Claims Under the PMI Policy
Notwithstanding anything to the contrary elsewhere in this Article III, the
Master Servicer shall not agree to any modification or assumption of a PMI
Mortgage Loan or take any other action with respect to a PMI Mortgage Loan that
could result in denial of coverage under the PMI Policy. The Master Servicer
shall notify the PMI Insurer that the Trustee, as trustee on behalf of the
Certificateholders, is the insured, as that term is defined in the PMI Policy,
of each PMI Mortgage Loan. The Master Servicer shall, on behalf of the Trustee,
prepare and file on a timely basis with the PMI Insurer, with a copy to the
Trustee, all claims which may be made under the PMI Policy with respect to the
PMI Mortgage Loans. The Master Servicer shall take all actions required under
the PMI Policy as a condition to the payment of any such claim. Any amount
received from the PMI Insurer with respect to any such PMI Mortgage Loan shall
be deposited by the Master Servicer, no later than two Business Days following
receipt thereof, into the Collection Account. On each Distribution Date, the
Trustee shall pay to the PMI Insurer the PMI Insurer Fee for such Distribution
Date from the amounts on deposit in the Distribution Account prior to making any
distributions to the Certificateholders.
Section 3.29 Swap Agreement.
The Depositor hereby directs the Trustee to execute and deliver on behalf
of the Trust the Swap Agreement and authorizes the Trustee to perform its
obligations thereunder on behalf of the Trust in accordance with the terms of
the Swap Agreement. The Depositor hereby authorizes and directs the Trustee to
ratify on behalf of the Trust, as the Trust's own actions, the terms agreed to
by the Depositor in relation to the Swap Agreement, as reflected in the Swap
Agreement, and the Trustee hereby so ratifies the Swap Agreement. The Trustee
shall amend the Swap Agreement in accordance with its terms and as requested by
a party to the Swap Agreement to cure any ambiguity in or correct or supplement
any provision of, the Swap Agreement, provided, however, that any such amendment
will not have a material adverse effect on a Certificateholder as evidenced by a
written confirmation from each Rating Agency that such amendment would not
result in the reduction or withdrawal of the then current ratings of any
outstanding Class of Certificates. On the Closing Date, the Trustee shall enter
into the Swap Agreement, on behalf of the Trust, with the Swap Counterparty. The
Swap Agreement shall be part of the Trust Fund but not part of any REMIC. The
Swap Counterparty is the calculation agent under the Swap Agreement and shall
calculate all amounts pursuant to the Swap Agreement and notify the Trustee of
all such amounts.
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Section 3.30 Cap Agreements.
(a) The Depositor hereby directs the Trustee to execute and deliver on
behalf of the Trust each of the Cap Agreements and authorizes the Trustee to
perform its obligations thereunder on behalf of the Trust in accordance with the
terms of each of the Cap Agreements.
(b) If a Counterparty Rating Agency Downgrade (as defined in Part I(h)
of Schedule to each of the Cap Agreements) occurs, the Trustee shall, promptly
after a Responsible Officer of the Trustee has received actual knowledge or
written notice of the reduction or withdrawal of the rating (it being understood
that the Trustee has no duty to monitor the ratings of the Cap Provider),
request the Cap Provider to take actions required to be taken by the Cap
Provider by Part I(h) of Schedule to each of the Cap Agreements.
(c) In the event that any of the Cap Agreements is canceled or
otherwise terminated for any reason (other than the exhaustion of the interest
rate protection provided thereby or replacement of such Cap Agreement by the Cap
Provider in accordance with Section 3.30(b)), the Depositor shall, to the extent
a replacement contract is available, direct the Trustee to obtain from a
counterparty designated by the Depositor a replacement contract comparable to
such Cap Agreement (which both such counterparty and such replacement contract
shall be acceptable to the Trustee and the Holders of the Certificates entitled
to at least 50% of the Voting Rights) providing interest rate protection which
is equal to the then-existing protection provided by such Cap Agreement,
provided, however, that if the cost of any such replacement contract providing
the same interest rate protection would be greater than the amount of any early
termination payment received by the Trustee under the related Cap Agreement, the
amount of interest rate protection provided by such replacement contract may be
reduced to a level such that the cost of such replacement contract shall not
exceed the amount of such early termination payment.
(d) If any payments are owed to the Cap Provider, the Trustee shall
request the Cap Provider to furnish IRS Form W-8ECI to the Trustee or other
documentary evidence necessary to establish that no withholding is required
under the Code.
ARTICLE IV
FLOW OF FUNDS
Section 4.01 Distributions.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account that portion of the Available Funds for such Distribution
Date consisting of the Group I Interest Remittance Amount, the Group II Interest
Remittance Amount and the Group III Interest Remittance Amount for such
Distribution Date, and make the following disbursements and transfers in the
order of priority described below, in each case to the extent of the Group I
Interest Remittance Amount, the Group II Interest Remittance Amount or the Group
III Interest Remittance Amount remaining for such Distribution Date:
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(i) The Group I Interest Remittance Amount shall be distributed
as follows:
(A) first, to the Final Maturity Reserve Account, the Group
I Final Maturity Reserve Amount for such Distribution Date;
(B) second, to the Final Maturity Reserve Account, the Group
II Final Maturity Reserve Amount and the Group III Final Maturity
Reserve Amount, in each case, to the extent not paid pursuant to
Sections 4.01(a)(ii)(A) and (iii)(B), pro rata, based on the
amounts due;
(C) third, concurrently, to the Class I-A1 Certificates and
the Class I-A2 Certificates, the Monthly Interest Distributable
Amount for such Classes, allocated between the Class I-A1
Certificates and the Class I-A2 Certificates, pro rata, based on
their respective entitlements;
(D) fourth, concurrently, to the Class II-A1 Certificates,
the Class II-A2 Certificates, the Class III-A1 Certificates (if a
Swap Default has occurred and is continuing), the Class III-A1A
Certificates, the Class III-A2 Certificates, the Class III-A3
Certificates and the Class III-A4 Certificates, the Monthly
Interest Distributable Amount for such Classes, to the extent not
paid pursuant to Sections 4.01(a)(ii)(C) and (iii)(D), allocated
among the Class II-A1 Certificates, the Class II-A2 Certificates,
the Class III-A1 Certificates (if a Swap Default has occurred and
is continuing), the Class III-A1A Certificates, the Class III-A2
Certificates, the Class III-A3 Certificates and the Class III-A4
Certificates, pro rata, based on their respective entitlements;
(E) fifth, concurrently, to the Class I-A1 Certificates and
the Class I-A2 Certificates, any Unpaid Interest Shortfall Amount
for such Classes, allocated between the Class I-A1 Certificates
and the Class I-A2 Certificates, pro rata, based on their
respective entitlements;
(F) sixth, to the Supplemental Interest Account for payment
to the Swap Counterparty, the Trust Swap Payment, provided a Swap
Default has not occurred and is not continuing, and any Swap
Termination Payment (if a Swap Default is attributable to the
Trust) as applicable for the related Distribution Date, to the
extent not paid pursuant to Section 4.01(a)(iii)(A); and
(G) seventh, concurrently, (a) so long as an Early
Termination Date has not been effectively designated, to the
Supplemental Interest Account, for payment to the Swap
Counterparty, any due and unpaid Trust Swap Payments from
previous Distribution Dates, with interest thereon at the
Pass-Through Rate for the Class III-A1 Certificates for the
related Distribution Date, to the extent not paid pursuant to
Section 4.01(a)(iii)(F), and (b) concurrently, to the Class II-A1
Certificates, the Class II-A2 Certificates, the Class III-A1
Certificates (if a Swap Default has occurred
128
and is continuing), the Class III-A1A Certificates, the Class
III-A2 Certificates, the Class III-A3 Certificates and the Class
III-A4 Certificates, any Unpaid Interest Shortfall Amount for
such Classes, to the extent not paid pursuant to Sections
4.01(a)(ii)(E) and (iii)(F), allocated among the Class II-A1
Certificates, the Class II-A2 Certificates, the Class III-A1
Certificates (if a Swap Default has occurred and is continuing),
the Class III-A1A Certificates, the Class III-A2 Certificates,
the Class III-A3 Certificates and the Class III-A4 Certificates,
pro rata, based on their respective entitlements; provided,
however, if the amount available to make the required
distributions pursuant to clauses (a) and (b) of this Section
4.01(a)(i)(G) is insufficient, such available amount will be
allocated between such clauses, pro rata, based upon the amounts
required to be distributed pursuant to such clauses.
(ii) The Group II Interest Remittance Amount shall be distributed
as follows:
(A) first, to the Final Maturity Reserve Account, the Group
II Final Maturity Reserve Amount for such Distribution Date;
(B) second, to the Final Maturity Reserve Account, the Group
I Final Maturity Reserve Amount and the Group III Final Maturity
Reserve Amount, in each case, to the extent not paid pursuant to
Sections 4.01(a)(i)(A) and (iii)(B), pro rata, based on the
amounts due;
(C) third, concurrently, to the Class II-A1 Certificates and
the Class II-A2 Certificates, the Monthly Interest Distributable
Amount for such Classes, allocated between the Class II-A1
Certificates and the Class II-A2 Certificates, pro rata, based on
their respective entitlements;
(D) fourth, concurrently, to the Class I-A1 Certificates,
the Class I-A2 Certificates, the Class III-A1 Certificates (if a
Swap Default has occurred and is continuing), the Class III-A1A
Certificates, the Class III-A2 Certificates, the Class III-A3
Certificates and the Class III-A4 Certificates, the Monthly
Interest Distributable Amount for such Classes, to the extent not
paid pursuant to Sections 4.01(a)(i)(C) and (iii)(D), allocated
among the Class I-A1 Certificates, the Class I-A2 Certificates,
the Class III-A1 Certificates (if a Swap Default has occurred and
is continuing), the Class III-A1A Certificates, the Class III-A2
Certificates, the Class III-A3 Certificates and the Class III-A4
Certificates, pro rata, based on their respective entitlements;
(E) fifth, concurrently, to the Class II-A1 Certificates and
the Class II-A2 Certificates, any Unpaid Interest Shortfall
Amount for such Classes, allocated between the Class II-A1
Certificates and the Class II-A2 Certificates, pro rata, based on
their respective entitlements;
129
(F) sixth, to the Supplemental Interest Account for payment
to the Swap Counterparty, the Trust Swap Payment, provided a Swap
Default has not occurred and is not continuing, and any Swap
Termination Payment (if a Swap Default is attributable to the
Trust) as applicable for the related Distribution Date, to the
extent not paid pursuant to Section 4.01(a)(iii)(A); and
(G) seventh, concurrently, (a) so long as an Early
Termination Date has not been effectively designated, to the
Supplemental Interest Account, for payment to the Swap
Counterparty, any due and unpaid Trust Swap Payments from
previous Distribution Dates, with interest thereon at the
Pass-Through Rate for the Class III-A1 Certificates for the
related Distribution Date, to the extent not paid pursuant to
Section 4.01(a)(iii)(F), and (b) concurrently, to the Class I-A1
Certificates, the Class I-A2 Certificates, the Class III-A1
Certificates (if a Swap Default has occurred and is continuing),
the Class III-A1A Certificates, the Class III-A2 Certificates,
the Class III-A3 Certificates and the Class III-A4 Certificates,
any Unpaid Interest Shortfall Amount for such Classes, to the
extent not paid pursuant to Sections 4.01(a)(i)(E) and (iii)(F),
allocated among the Class I-A1 Certificates, the Class I-A2
Certificates, the Class III-A1 Certificates (if a Swap Default
has occurred and is continuing), the Class III-A1A Certificates,
the Class III-A2 Certificates, the Class III-A3 Certificates and
the Class III-A4 Certificates, pro rata, based on their
respective entitlements; provided, however, if the amount
available to make the required distributions pursuant to clauses
(a) and (b) of this Section 4.01(a)(ii)(G) is insufficient, such
available amount will be allocated between such clauses, pro
rata, based upon the amounts required to be distributed pursuant
to such clauses.
(iii) the Group III Interest Remittance Amount will be
distributed as follows:
(A) first, to the Supplemental Interest Account for payment
to the Swap Counterparty, the Trust Swap Payment, provided a Swap
Default has not occurred and is not continuing, and any Swap
Termination Payment (if a Swap Default is attributable to the
Trust) as applicable for the related Distribution Date;
(B) second, to the Final Maturity Reserve Account, the Group
III Final Maturity Reserve Amount for such Distribution Date;
(C) third, to the Final Maturity Reserve Account, the Group
I Final Maturity Reserve Amount and the Group II Final Maturity
Reserve Amount, in each case, to the extent not paid pursuant to
Sections 4.01(a)(i)(A) and (ii)(A), pro rata, based on the
amounts due;
(D) fourth, concurrently, to the Class III-A1 Certificates
(if a Swap Default has occurred and is continuing), the Class
III-A1A
130
Certificates, the Class III-A2 Certificates, the Class III-A3
Certificates and the Class III-A4 Certificates, the Monthly
Interest Distributable Amount for such Classes, in each case
allocated among the Class III-A1 Certificates (if a Swap Default
has occurred and is continuing), the Class III-A1A Certificates,
the Class III-A2 Certificates, the Class III-A3 Certificates and
the Class III-A4 Certificates, pro rata, based on their
respective entitlements;
(E) fifth, concurrently, to the Class I-A1 Certificates, the
Class I-A2 Certificates, the Class II-A1 Certificates and the
Class II-A2 Certificates, the Monthly Interest Distributable
Amount for such Classes, to the extent not paid pursuant to
Sections 4.01(a)(i)(C) and (ii)(C), allocated among the Class
I-A1 Certificates, the Class I-A2 Certificates, the Class II-A1
Certificates and the Class II-A2 Certificates pro rata, based on
their respective entitlements;
(F) sixth, concurrently, (a) so long as an Early Termination
Date has not been effectively designated, to the Supplemental
Interest Account, for payment to the Swap Counterparty, any due
and unpaid Trust Swap Payments from previous Distribution Dates,
with interest thereon at the Pass-Through Rate for the Class
III-A1 Certificates for the related Distribution Date, and (b)
concurrently, to the Class III-A1 Certificates (if a Swap Default
has occurred and is continuing), the Class III-A1A Certificates,
the Class III-A2 Certificates, the Class III-A3 Certificates and
the Class III-A4 Certificates, any Unpaid Interest Shortfall
Amount for such Classes, allocated among the Class III-A1
Certificates (if a Swap Default has occurred and is continuing),
the Class III-A1A Certificates, the Class III-A2 Certificates,
the Class III-A3 Certificates and the Class III-A4 Certificates,
pro rata, based on their respective entitlements; provided,
however, if the amount available to make the required
distributions pursuant to clauses (a) and (b) of this Section
4.01(a)(iii)(F) is insufficient, such available amount will be
allocated between such clauses, pro rata, based upon the amounts
required to be distributed pursuant to such clauses; and
(G) seventh, concurrently, to the Class I-A1 Certificates,
the Class I-A2 Certificates, the Class II-A1 Certificates and the
Class II-A2 Certificates, any Unpaid Interest Shortfall Amount
for such Classes, to the extent not paid pursuant to Sections
4.01(a)(i)(E) and (ii)(E), allocated among the Class I-A1
Certificates, the Class I-A2 Certificates, the Class II-A1
Certificates and the Class II-A2 Certificates, pro rata, based on
their respective entitlements.
131
(iv) The sum of any Group I Interest Remittance Amount, Group II
Interest Remittance Amount and Group III Interest Remittance Amount
remaining undistributed following the distributions pursuant to
clauses (i), (ii) and (iii) above shall be distributed as follows:
first, to the Class M-1 Certificates, the related Monthly
Interest Distributable Amount;
second, to the Class M-2 Certificates, the related Monthly
Interest Distributable Amount;
third, to the Class M-3 Certificates, the related Monthly
Interest Distributable Amount;
fourth, to the Class M-4 Certificates, the related Monthly
Interest Distributable Amount;
fifth, to the Class M-5 Certificates, the related Monthly
Interest Distributable Amount;
sixth, to the Class M-6 Certificates, the related Monthly
Interest Distributable Amount;
seventh, to the Class M-7 Certificates, the related Monthly
Interest Distributable Amount;
eighth, to the Class M-8 Certificates, the related Monthly
Interest Distributable Amount;
ninth, to the Class M-9 Certificates, the related Monthly
Interest Distributable Amount;
tenth, to the Class M-10 Certificates, the related Monthly
Interest Distributable Amount;
eleventh, to the Class B-1 Certificates, the related Monthly
Interest Distributable Amount;
twelfth, to the Class B-2 Certificates, the related Monthly
Interest Distributable Amount; and
thirteenth, to the Class B-3 Certificates, the related
Monthly Interest Distributable Amount.
(v) Any Group I Interest Remittance Amount, Group II Interest
Remittance Amount or Group III Interest Remittance Amount remaining
undistributed following distributions pursuant to clause (iv) above
shall be used in determining the amount of Net Monthly Excess
Cashflow, if any, for such Distribution Date.
132
(vi) For distributions pursuant to clauses (i)(B), (D), (F) and
(G), (ii)(B), (D), (F) and (G), and (iii)(C), (E) and (G) of this
Section 4.01(a), each such priority of distribution from the Group I
Interest Remittance Amount, the Group II Interest Remittance Amount
and the Group III Interest Remittance Amount, respectively, will be
distributed: concurrently among Sections 4.01(a)(i)(B),(ii)(B) and
(iii)(C); concurrently among Sections 4.01(a)(i)(D),(ii)(D) and
(iii)(E); concurrently between Sections 4.01(a)(i)(F) and (ii)(F); and
concurrently among Sections 4.01(a)(i)(G),(ii)(G) and (iii)(G), in
each case, in proportion to the amounts distributable under each
clause.
(b) On each Distribution Date (a) prior to the Stepdown Date or (b) on
which a Trigger Event is in effect, the Class A Certificates, the Mezzanine
Certificates and the Class B Certificates shall be entitled to receive
distributions in respect of principal to the extent of the Group I Principal
Distribution Amount, the Group II Principal Distribution Amount and the Group
III Principal Distribution Amount in the following amounts and order of
priority:
(i) first,
(A) the Group I Principal Distribution Amount will be
distributed as follows:
(I) to the Supplemental Interest Account for payment to
the Swap Counterparty, any unpaid Swap Termination Payment
(only if the Swap Default is attributable to the Trust)
remaining unpaid after giving effect to the distributions of
the Interest Remittance Amounts and the Group III Principal
Distribution Amount for such Distribution Date; then
(II) to the Group I Senior Certificates (allocated
between the Group I Senior Certificates in the priority
described in Section 4.01(b)(iv), until the Certificate
Principal Balances thereof have been reduced to zero; and
then
(III) concurrently, to the Group II Senior Certificates
(allocated between the Group II Senior Certificates in the
priority described in Section 4.01(b)(v) and the Group III
Senior Certificates (allocated among the Group III Senior
Certificates in the priority described in Section
4.01(b)(vi), pro rata, based on the aggregate Certificate
Principal Balances of the Group II Senior Certificates and
the Group III Senior Certificates after giving effect to the
distributions pursuant to Sections 4.01(b)(i)(B)(II) and
(C)(II), until the Certificate Principal Balances thereof
have been reduced to zero.
133
(B) the Group II Principal Distribution Amount will be
distributed as follows:
(I) to the Supplemental Interest Account for payment to
the Swap Counterparty, any unpaid Swap Termination Payment
(only if the Swap Default is attributable to the Trust)
remaining unpaid after giving effect to the distributions of
the Interest Remittance Amounts and the Group III Principal
Distribution Amount for such Distribution Date; then
(II) to the Group II Senior Certificates (allocated
between the Group II Senior Certificates in the priority
described in Section 4.01(b)(v), until the Certificate
Principal Balances thereof have been reduced to zero; and
then
(III) concurrently, to the Group I Senior Certificates
(allocated between the Group I Senior Certificates in the
priority described in Section 4.01(b)(iv) and the Group III
Senior Certificates (allocated among the Group III Senior
Certificates in the priority described in Section
4.01(b)(vi), pro rata, based on the aggregate Certificate
Principal Balances of the Group I Senior Certificates and
the Group III Senior Certificates after giving effect to the
distributions pursuant to Sections 4.01(b)(i)(A)(II) and
(C)(II), until the Certificate Principal Balances thereof
have been reduced to zero.
(C) the Group III Principal Distribution Amount will be
distributed as follows:
(I) to the Supplemental Interest Account for payment to
the Swap Counterparty, any unpaid Swap Termination Payment
(only if the Swap Default is attributable to the Trust)
remaining unpaid after giving effect to the distributions of
the Interest Remittance Amounts for such Distribution Date;
then
(II) to the Group III Senior Certificates (allocated
among the Group III Senior Certificates in the priority
described in Section 4.01(b)(vi), until the Certificate
Principal Balances thereof have been reduced to zero; and
then
(III) concurrently, to the Group I Senior Certificates
(allocated between the Group I Senior Certificates in the
priority described in Section 4.01(b)(iv) and the Group II
Senior Certificates (allocated between the Group II Senior
Certificates in the priority described in Section
4.01(b)(v), pro rata, based on the aggregate Certificate
Principal Balances of the Group I Senior Certificates and
the Group II Senior Certificates after giving effect to the
distributions pursuant to Sections 4.01(b)(i)(A)(II) and
134
(B)(II), until the Certificate Principal Balances thereof
have been reduced to zero.
(ii) second, the sum of any Group I Principal Distribution
Amount, Group II Principal Distribution Amount and Group III Principal
Distribution Amount remaining undistributed following the
distributions pursuant to Section 4.01(b)(i) shall be distributed in
the following order of priority:
first, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
second, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
third, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fourth, to the Class M-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fifth, to the Class M-5 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
sixth, to the Class M-6 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
seventh, to the Class M-7 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
eighth, to the Class M-8 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
ninth, to the Class M-9 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
tenth, to the Class M-10 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
eleventh, to the Class B-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
twelfth, to the Class B-2 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
and
thirteenth, to the Class B-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero.
135
(iii) Any principal remaining undistributed pursuant to Sections
4.01(b)(i) and 4.01(b)(ii) above shall be used in determining the
amount of Net Monthly Excess Cashflow, if any, for such Distribution
Date.
(iv) With respect to the Group I Senior Certificates, on any
Distribution Date prior to the Stepdown Date or on which a Trigger
Event is in effect, all principal distributions will be allocated
concurrently to the Class I-A1 Certificates and the Class I-A2
Certificates, pro rata, based on their Certificate Principal Balances,
with the exception that beginning on the first Distribution Date on or
after which the Certificate Principal Balances of the Mezzanine
Certificates and the Class B Certificates have been reduced to zero
and the Net Monthly Excess Cashflow and Overcollateralized Amount for
such Distribution Date are insufficient to cover Realized Losses on
the Group I Mortgage Loans or if a Sequential Trigger Event is in
effect, principal distributions will be allocated sequentially, to the
Class I-A1 Certificates and the Class I-A2 Certificates, in that
order, in each case until the Certificate Principal Balances thereof
have been reduced to zero.
(v) With respect to the Group II Senior Certificates, on any
Distribution Date prior to the Stepdown Date or on which a Trigger
Event is in effect, all principal distributions will be allocated
concurrently to the Class II-A1 Certificates and the Class II-A2
Certificates, pro rata, based on their Certificate Principal Balances,
with the exception that beginning on the first Distribution Date on or
after which the Certificate Principal Balances of the Mezzanine
Certificates and the Class B Certificates have been reduced to zero
and the Net Monthly Excess Cashflow and Overcollateralized Amount for
such Distribution Date are insufficient to cover Realized Losses on
the Group II Mortgage Loans or if a Sequential Trigger Event is in
effect, principal distributions will be allocated sequentially, to the
Class II-A1 Certificates and the Class II-A2 Certificates, in that
order, in each case until the Certificate Principal Balances thereof
have been reduced to zero.
(vi) With respect to the Group III Senior Certificates, on any
Distribution Date prior to the Stepdown Date or on which a Trigger
Event is in effect, all principal distributions will be allocated
concurrently to (i) the Class III-A1 Certificates and the Class
III-A1A Certificates and (ii) the Class III-A2 Certificates, the Class
III-A3 Certificates and the Class III-A4 Certificates, pro rata, based
on the aggregate Certificate Principal Balance of the Class III-A1
Certificates and the Class III-A1A Certificates and the aggregate
Certificate Principal Balance of the Class III-A2 Certificates, the
Class III-A3 Certificates and the Class III-A4 Certificates. With
respect to the Class III-A1 Certificates and the Class III-A1A
Certificates, on any Distribution Date prior to the Stepdown Date or
on which a Trigger Event is in effect, all principal distributions
will be allocated concurrently to the Class III-A1 Certificates and
the Class III-A1A Certificates, pro rata, based on their Certificate
Principal Balances, with the exception that beginning on the first
Distribution Date on or after which the Certificate Principal Balances
of the Mezzanine Certificates and the Class B Certificates have been
reduced to zero and the Net Monthly Excess Cashflow and
136
Overcollateralized Amount for such Distribution Date are insufficient
to cover Realized Losses on the Group III Mortgage Loans or if a
Sequential Trigger Event is in effect, principal distributions will be
allocated sequentially, to the Class III-A1 Certificates and the Class
III-A1A Certificates, in that order, in each case until the
Certificate Principal Balances thereof have been reduced to zero. With
respect to the Class III-A2 Certificates, the Class III-A3 and the
Class III-A4 Certificates, on any Distribution Date prior to the
Stepdown Date or on which a Trigger Event is in effect, all principal
distributions among the Class III-A2 Certificates, the Class III-A3
Certificates and the Class III-A4 Certificates will be allocated
sequentially, in that order, in each case until the Certificate
Principal Balances thereof have been reduced to zero, with the
exception that beginning on the first Distribution Date on or after
which the Certificate Principal Balances of the Mezzanine Certificates
and the Class B Certificates have been reduced to zero and the Net
Monthly Excess Cashflow and Overcollateralized Amount for such
Distribution Date are insufficient to cover Realized Losses on the
Group III Mortgage Loans, principal distributions among the Class
III-A2 Certificates, the Class III-A3 Certificates and the Class
III-A4 Certificates will be allocated concurrently, pro rata, based on
their Certificate Principal Balances.
(vii) For distributions pursuant to clauses (i)(A)(I) and (III),
(i)(B)(I) and (III), and (i)(C)(III) of this Section 4.01(b), each
such priority of distribution from the Group I Principal Distribution
Amount, the Group II Principal Distribution Amount and the Group III
Principal Distribution Amount, respectively, will be distributed:
concurrently between clauses (i)(A)(I) and (i)(B)(I); and concurrently
among clauses (i)(a)(III), (i)(B)(III) and (i)(C)(III), in each case,
in proportion to the amounts distributable under each clause.
(c) On each Distribution Date (a) on or after the Stepdown Date and
(b) on which a Trigger Event is not in effect, the Class A Certificates, the
Mezzanine Certificates and the Class B Certificates shall be entitled to receive
distributions in respect of principal to the extent of the Group I Principal
Distribution Amount, the Group II Principal Distribution Amount and the Group
III Principal Distribution Amount in the following amounts and order of
priority:
(i) first,
(A) the Group I Principal Distribution Amount shall be
distributed as follows:
(I) to the Supplemental Interest Account for payment to
the Swap Counterparty, any unpaid Swap Termination Payment
(only if the Swap Default is attributable to the Trust)
remaining unpaid after giving effect to the distributions of
the Interest Remittance Amounts and the Group III Principal
Distribution Amount for such Distribution Date; then
(II) to the Group I Senior Certificates, the Group I
Senior Principal Distribution Amount (allocated between the
Group I Senior Certificates in the priority described in
Section
137
4.01(c)(iv), until the Certificate Principal Balances
thereof have been reduced to zero; and then
(III) concurrently, to the Group II Senior
Certificates, the Group II Senior Principal Distribution
Amount, to the extent not paid pursuant to Section
4.01(c)(i)(B)(II) (allocated between the Group II Senior
Certificates in the priority described in Section
4.01(c)(v), and the Group III Senior Certificates, the Group
III Senior Principal Distribution Amount, to the extent not
paid pursuant to Section 4.01(c)(i)(C)(II) (allocated among
the Group III Senior Certificates in the priority described
in Section 4.01(c)(vi), pro rata, based on the aggregate
Certificate Principal Balances of the Group II Senior
Certificates and the Group III Senior Certificates after
giving effect to the distributions pursuant to Sections
4.01(c)(i)(B)(II) and (C)(II), until the Certificate
Principal Balances thereof have been reduced to zero.
(B) the Group II Principal Distribution Amount shall be
distributed as follows:
(I) to the Supplemental Interest Account for payment to
the Swap Counterparty, any unpaid Swap Termination Payment
(only if the Swap Default is attributable to the Trust)
remaining unpaid after giving effect to the distributions of
the Interest Remittance Amounts and the Group III Principal
Distribution Amount for such Distribution Date; then
(II) to the Group II Senior Certificates, the Group II
Senior Principal Distribution Amount (allocated between the
Group II Senior Certificates in the priority described in
Section 4.01(c)(v), until the Certificate Principal Balances
thereof have been reduced to zero; and then
(III) concurrently, to the Group I Senior Certificates,
the Group I Senior Principal Distribution Amount, to the
extent not paid pursuant to Section 4.01(c)(i)(A)(II)
(allocated between the Group I Senior Certificates in the
priority described in Section 4.01(c)(iv), and the Group III
Senior Certificates, the Group III Senior Principal
Distribution Amount, to the extent not paid pursuant to
Section 4.01(c)(i)(C)(II) (allocated among the Group III
Senior Certificates in the priority described in Section
4.01(c)(vi), pro rata, based on the aggregate Certificate
Principal Balances of the Group I Senior Certificates and
the Group III Senior Certificates after giving effect to the
distributions pursuant to Sections 4.01(c)(i)(A)(II) and
(C)(II), until the Certificate Principal Balances thereof
have been reduced to zero.
138
(C) the Group III Principal Distribution Amount will be
distributed as follows:
(I) to the Supplemental Interest Account for payment to
the Swap Counterparty, any unpaid Swap Termination Payment
(only if the Swap Default is attributable to the Trust)
remaining unpaid after giving effect to the distributions of
the Interest Remittance Amounts for such Distribution Date;
then
(II) to the Group III Senior Certificates, the Group
III Senior Principal Distribution Amount (allocated among
the Group III Senior Certificates in the priority described
in Section 4.01(c)(vi), until the Certificate Principal
Balances thereof have been reduced to zero; and then
(III) concurrently, to the Group I Senior Certificates,
the Group I Senior Principal Distribution Amount, to the
extent not paid pursuant to Section 4.01(c)(i)(A)(II)
(allocated between the Group I Senior Certificates in the
priority described in Section 4.01(c)(iv), and the Group II
Senior Certificates, the Group II Senior Principal
Distribution Amount, to the extent not paid pursuant to
Section 4.01(c)(i)(B)(II) (allocated between the Group II
Senior Certificates in the priority described in Section
4.01(c)(v), pro rata, based on the aggregate Certificate
Principal Balances of the Group I Senior Certificates and
the Group II Senior Certificates after giving effect to the
distributions pursuant to Sections 4.01(c)(i)(A)(II) and
(B)(II), until the Certificate Principal Balances thereof
have been reduced to zero.
(ii) second, the sum of any Group I Principal Distribution
Amount, Group II Principal Distribution Amount and Group III Principal
Distribution Amount remaining undistributed following the distribution
pursuant to Section 4.01(c)(i) shall be distributed in the following
order of priority:
first, to the Class M-1 Certificates, the Class M-1
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
second, to the Class M-2 Certificates, the Class M-2
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
third, to the Class M-3 Certificates, the Class M-3
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
139
fourth, to the Class M-4 Certificates, the Class M-4
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
fifth, to the Class M-5 Certificates, the Class M-5
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
sixth, to the Class M-6 Certificates, the Class M-6
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
seventh, to the Class M-7 Certificates, the Class M-7
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
eighth, to the Class M-8 Certificates, the Class M-8
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
ninth, to the Class M-9 Certificates, the Class M-9
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
tenth, to the Class M-10 Certificates, the Class M-10
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
eleventh, to the Class B-1 Certificates, the Class B-1
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
twelfth, to the Class B-2 Certificates, the Class B-2
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero; and
thirteenth, to the Class B-3 Certificates, the Class B-3
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero.
(iii) Any principal remaining undistributed following
distributions pursuant to Sections 4.01(c)(i) and 4.01(c)(ii) shall be
used in determining the amount of Net Monthly Excess Cashflow, if any,
for such Distribution Date.
(iv) With respect to the Group I Senior Certificates, on any
Distribution Date on or after the Stepdown Date and on which a Trigger
Event is not in effect, all principal distributions will be allocated
concurrently to the Class I-A1 Certificates and the Class I-A2
Certificates, pro rata, based on their Certificate
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Principal Balances, with the exception that beginning on the first
Distribution Date on or after which the Certificate Principal Balances
of the Mezzanine Certificates and the Class B Certificates have been
reduced to zero and the Net Monthly Excess Cashflow and
Overcollateralized Amount for such Distribution Date are insufficient
to cover Realized Losses on the Group I Mortgage Loans, principal
distributions will be allocated sequentially, to the Class I-A1
Certificates and the Class I-A2 Certificates, in that order, in each
case until the Certificate Principal Balances thereof have been
reduced to zero.
(v) With respect to the Group II Senior Certificates, on any
Distribution Date on or after the Stepdown Date and on which a Trigger
Event is not in effect, all principal distributions will be allocated
concurrently to the Class II-A1 Certificates and the Class II-A2
Certificates, pro rata, based on their Certificate Principal Balances,
with the exception that beginning on the first Distribution Date on or
after which the Certificate Principal Balances of the Mezzanine
Certificates and the Class B Certificates have been reduced to zero
and the Net Monthly Excess Cashflow and Overcollateralized Amount for
such Distribution Date are insufficient to cover Realized Losses on
the Group II Mortgage Loans, principal distributions will be allocated
sequentially, to the Class II-A1 Certificates and the Class II-A2
Certificates, in that order, in each case until the Certificate
Principal Balances thereof have been reduced to zero.
(vi) With respect to the Group III Senior Certificates, on any
Distribution Date on or after the Stepdown Date and on which a Trigger
Event is not in effect, all principal distributions will be allocated
concurrently to (i) the Class III-A1 Certificates and the Class
III-A1A Certificates and (ii) the Class III-A2 Certificates, the Class
III-A3 Certificates and the Class III-A4 Certificates, pro rata, based
on the aggregate Certificate Principal Balance of the Class III-A1
Certificates and the Class III-A1A Certificates and the aggregate
Certificate Principal Balance of the Class III-A2 Certificates, the
Class III-A3 Certificates and the Class III-A4 Certificates. With
respect to the Class III-A1 Certificates and the Class III-A1A
Certificates, on any Distribution Date on or after the Stepdown Date
and on which a Trigger Event is not in effect, all principal
distributions will be allocated concurrently to the Class III-A1
Certificates and the Class III-A1A Certificates, pro rata, based on
their Certificate Principal Balances, with the exception that
beginning on the first Distribution Date on or after which the
Certificate Principal Balances of the Mezzanine Certificates and the
Class B Certificates have been reduced to zero and the Net Monthly
Excess Cashflow and Overcollateralized Amount for such Distribution
Date are insufficient to cover Realized Losses on the Group III
Mortgage Loans, principal distributions will be allocated
sequentially, to the Class III-A1 Certificates and the Class III-A1A
Certificates, in that order, in each case until the Certificate
Principal Balances thereof have been reduced to zero. With respect to
the Class III-A2 Certificates, the Class III-A3 and the Class III-A4
Certificates, on any Distribution Date on or after the Stepdown Date
or on which a Trigger Event is not in effect, all principal
distributions among the Class III-A2 Certificates, the Class III-A3
Certificates and the Class III-A4 Certificates will be allocated
sequentially, in that order, in each case until the Certificate
Principal Balances thereof have been reduced to
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zero, with the exception that beginning on the first Distribution Date
on or after which the Certificate Principal Balances of the Mezzanine
Certificates and the Class B Certificates have been reduced to zero
and the Net Monthly Excess Cashflow and Overcollateralized Amount for
such Distribution Date are insufficient to cover Realized Losses on
the Group III Mortgage Loans, principal distributions among the Class
III-A2 Certificates, the Class III-A3 Certificates and the Class
III-A4 Certificates will be allocated concurrently, pro rata, based on
their Certificate Principal Balances.
(vii) For distributions pursuant to clauses (i)(A)(I) and (III),
(i)(B)(I) and (III), and (i)(C)(III) of this Section 4.01(c), each
such priority of distribution from the Group I Principal Distribution
Amount, the Group II Principal Distribution Amount and the Group III
Principal Distribution Amount, respectively, will be distributed:
concurrently between clauses (i)(A)(I) and (i)(B)(I); and concurrently
among clauses (i)(a)(III), (i)(B)(III) and (i)(C)(III), in each case,
in proportion to the amounts distributable under each clause.
(d) (i) On each Distribution Date, the Trustee shall distribute
any Net Monthly Excess Cashflow in the following order of priority, in
each case to the extent of the Net Monthly Excess Cashflow remaining
undistributed:
(a) to the Class or Classes of Certificates then entitled to
receive distributions in respect of principal, in an amount equal
to the sum of any Extra Principal Distribution Amount and the
Remaining Principal Distribution Amount for such Distribution
Date, payable to such Class or Classes of Certificates as part of
the Group I Principal Distribution Amount, the Group II Principal
Distribution Amount or the Group III Principal Distribution
Amount, as applicable, pursuant to Section 4.01(b) or Section
4.01(c) above, as applicable;
(b) concurrently, to the Class A Certificates, in an amount
equal to the Unpaid Interest Shortfall Amount, if any, for such
Classes for such Distribution Date to the extent remaining unpaid
after distribution of the Group I Interest Remittance Amount, the
Group II Interest Remittance Amount and the Group III Interest
Remittance Amount on such Distribution Date, allocated among such
classes, pro rata, based on their respective entitlements;
(c) concurrently, to the Class I-A2 Certificates, the Class
II-A2 Certificates and the Class III-A1A Certificates, in an
amount equal to the Allocated Realized Loss Amount, if any, for
such Classes for such Distribution Date, allocated between such
Classes pro rata, based on their Certificate Principal Balances;
(d) to the Class M-1 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
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(e) to the Class M-1 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(f) to the Class M-2 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(g) to the Class M-2 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(h) to the Class M-3 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(i) to the Class M-3 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(j) to the Class M-4 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(k) to the Class M-4 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(l) to the Class M-5 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(m) to the Class M-5 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(n) to the Class M-6 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(o) to the Class M-6 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(p) to the Class M-7 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
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(q) to the Class M-7 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(r) to the Class M-8 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(s) to the Class M-8 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(t) to the Class M-9 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(u) to the Class M-9 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(v) to the Class M-10 Certificates, in an amount equal to
the Unpaid Interest Shortfall Amount, if any, for such Class for
such Distribution Date;
(w) to the Class M-10 Certificates, in an amount equal to
the Allocated Realized Loss Amount, if any, for such Class for
such Distribution Date;
(x) to the Class B-1 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(y) to the Class B-1 Certificates, in an amount equal to the
Allocated Realized Loss Amount, if any, for such Class for such
Distribution Date;
(z) to the Class B-2 Certificates, in an amount equal to the
Unpaid Interest Shortfall Amount, if any, for such Class for such
Distribution Date;
(aa) to the Class B-2 Certificates, in an amount equal to
the Allocated Realized Loss Amount, if any, for such Class for
such Distribution Date;
(bb) to the Class B-3 Certificates, in an amount equal to
the Unpaid Interest Shortfall Amount, if any, for such Class for
such Distribution Date;
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(cc) to the Class B-3 Certificates, in an amount equal to
the Allocated Realized Loss Amount, if any, for such Class for
such Distribution Date;
(dd) to the Supplemental Interest Account, for payment to
the Swap Counterparty, in an amount equal to any Swap
Reimbursement Amount for such Distribution Date;
(ee) to the Class A Certificates, pro rata based on their
respective entitlement pursuant to this clause, in an amount
equal to each such Class' previously allocated and not reimbursed
share of Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls, if any;
(ff) to the Class M-1 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(gg) to the Class M-2 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(hh) to the Class M-3 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(ii) to the Class M-4 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(jj) to the Class M-5 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(kk) to the Class M-6 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(ll) to the Class M-7 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(mm) to the Class M-8 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(nn) to the Class M-9 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
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(oo) to the Class M-10 Certificates, previously allocated
and not reimbursed related Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls, if any;
(pp) to the Class B-1 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(qq) to the Class B-2 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(rr) to the Class B-3 Certificates, previously allocated and
not reimbursed related Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls, if any;
(ss) concurrently (i) to the Supplemental Interest Account,
for payment to the Swap Counterparty, in an amount equal to any
unpaid Swap Reimbursement Amounts for prior Distribution Date,
with interest thereon at the Formula Rate applicable to the Class
III-A1 Certificates for the related Distribution Date, and (ii)
to the Reserve Fund, the amount equal to the difference between
(x) the sum of (A) any excess of the sum of the Net WAC Rate
Carryover Amounts with respect to the Group I Senior Certificates
for such Distribution Date over any amounts on deposit in the
Reserve Fund on such Distribution Date with respect to the Group
I Senior Cap Agreement, (B) any excess of the sum of the Net WAC
Rate Carryover Amounts with respect to the Group II Senior
Certificates for such Distribution Date over any amounts on
deposit in the Reserve Fund on such Distribution Date with
respect to the Group II Senior Cap Agreement, (C) any excess of
the sum of the Net WAC Rate Carryover Amounts with respect to the
Group III Senior Certificates for such Distribution Date over any
amounts on deposit in the Reserve Fund on such Distribution Date
with respect to the Group III Senior Cap Agreement, and (D) any
excess of the sum of the Net WAC Rate Carryover Amounts with
respect to the Mezzanine Certificates and the Class B
Certificates for such Distribution Date over any amounts on
deposit in the Reserve Fund on such Distribution Date with
respect to the Subordinate Cap Agreement and (y) any amounts
deposited in the Reserve Fund pursuant to this Section
4.01(d)(i)(ss) that were not distributed on prior Distribution
Dates (or, if no Net WAC Rate Carryover Amounts are payable to
such Classes of Certificates on such Distribution Date, to the
Reserve Fund, an amount such that when added to other amounts
already on deposit in the Reserve Fund, the aggregate amount on
deposit therein is equal to $1,000); provided, however, if the
amount available to make the required distributions pursuant to
clauses (a) and (b) of this Section 4.01(d)(i)(ss) is
insufficient, such available amount will be allocated between
such clauses, pro rata, based on the amounts required to be
distributed pursuant to such clauses;
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(tt) to the Supplemental Interest Account, for payment to
the Swap Counterparty, any Swap Termination Payment (only if the
Swap Default is attributable to the Swap Counterparty) for such
Distribution Date;
(uu) to the Final Maturity Reserve Account, the Supplemental
Final Maturity Reserve Amount for such Distribution Date;
(vv) if such Distribution Date follows the Prepayment Period
during which occurs the latest date on which a Prepayment Charge
may be required to be paid in respect of any Mortgage Loans, to
REMIC PX, as holder of the Class P Interest, in reduction of the
Uncertificated Principal Balance thereof, until the
Uncertificated Principal Balance thereof is reduced to zero;
(ww) to REMIC CX, as holder of the Class C Interest, the sum
of (A) the Monthly Interest Distributable Amount for the Class C
Interest plus (B) until the Uncertificated Principal Balance of
the Class C Interest is reduced to zero, any
Overcollateralization Release Amount for such Distribution Date,
plus (C) until the Uncertificated Principal Balance of the Class
C Interest is reduced to zero, on any Distribution Date on which
the Certificate Principal Balances of the Class A Certificates,
the Mezzanine Certificates and the Class B Certificates has been
reduced to zero, any remaining amounts (in all cases, net of such
portion of amounts payable pursuant to this Section
4.01(d)(i)(ww) that were paid pursuant to Section 4.01(d)(i)(ss)
above); and
(xx) any remaining amounts to the Class R Certificates (in
respect of the appropriate Class R-2 Interest).
(ii) On each Distribution Date, after making the distributions of
the Available Funds as provided in this Section 4.01 (except for
distributions pursuant to Section 4.01(d)(iii)) and after depositing
in the Reserve Fund any payments received under the Cap Agreements,
the Trustee shall withdraw from the Reserve Fund the amounts on
deposit therein and shall distribute such amounts in the following
order of priority:
(a) first, concurrently, (A) amounts in the Reserve Fund
received with respect to the Group I Senior Cap Agreement
shall be distributed, concurrently, to the Group I Senior
Certificates, up to the amount of the related Net WAC Rate
Carryover Amount, allocated between the Group I Senior
Certificates, pro rata, based on the Net WAC Rate Carryover
Amounts, (B) amounts in the Reserve Fund received with
respect to the Group II Senior Cap Agreement shall be
distributed, concurrently, to the Group II Senior
Certificates, up to the amount of the related Net WAC Rate
Carryover Amount, allocated among the Group II Senior
Certificates, pro rata, based on the Net WAC Rate Carryover
Amounts, (C) amounts in the
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Reserve Fund received with respect to the Group III Senior
Cap Agreement shall be distributed, concurrently, to the
Group III Senior Certificates (other than the Class III-A1
Certificates), up to the amount of the related Net WAC Rate
Carryover Amount, allocated among the Group III Senior
Certificates, pro rata, based on the Net WAC Rate Carryover
Amounts, and (D) amounts in the Reserve Fund received with
respect to the Subordinate Cap Agreement shall be
distributed to the Mezzanine Certificates and the Class B
Certificates, up to the amount of the related Net WAC Rate
Carryover Amount, in the following order of priority: first
to the Class M-1 Certificates, second to the Class M-2
Certificates, third to the Class M-3 Certificates, fourth to
the Class M-4 Certificates, fifth to the Class M-5
Certificates, sixth to the Class M-6 Certificates, seventh
to the Class M-7 Certificates, eighth to the Class M-8
Certificates, ninth to the Class M-9 Certificates, tenth to
the Class M-10 Certificates, eleventh to the Class B-1
Certificates, twelfth to the Class B-2 Certificates and
thirteenth to the Class B-3 Certificates, in each case, to
the extent of amounts received with respect to the related
Cap Agreement remaining in the Reserve Fund.
(b) second, amounts deposited in the Reserve Fund pursuant to
Section 4.01(d)(i)(ss) shall be distributed first,
concurrently, to the Class A Certificates, up to the amount
of the related Net WAC Rate Carryover Amount to the extent
not paid pursuant to Section 4.01(d)(ii)(a), allocated among
the Class A Certificates, pro rata, based on the Net WAC
Rate Carryover Amounts; then, to the Mezzanine Certificates
and the Class B Certificates, up to the amount of the
related Net WAC Rate Carryover Amount to the extent not paid
pursuant to Section 4.01(d)(ii)(a), in the following order
of priority: first to the Class M-1 Certificates, second to
the Class M-2 Certificates, third to the Class M-3
Certificates, fourth to the Class M-4 Certificates, fifth to
the Class M-5 Certificates, sixth to the Class M-6
Certificates, seventh to the Class M-7 Certificates, eighth
to the Class M-8 Certificates, ninth to the Class M-9
Certificates, tenth to the Class M-10 Certificates, eleventh
to the Class B-1 Certificates, twelfth to the Class B-2
Certificates and thirteenth to the Class B-3 Certificates,
in each case to the extent of such amounts remaining in the
Reserve Fund.
On the Distribution Date on which the Certificate Principal Balance of the
Group I Senior Certificates has been reduced to zero, after making all other
distributions on such Distribution Date (including to the Class A Certificates,
the Mezzanine Certificates and the Class B Certificates out of the Reserve
Fund), the Trustee shall distribute to itself all remaining amounts on deposit
in Portion 1 of the Reserve Fund which were deposited in the Reserve Fund on
account of the Group I Senior Cap Agreement. On the Distribution Date on which
the Certificate Principal Balance of the Group II Senior Certificates has been
reduced to zero, after making all other distributions on such Distribution Date
(including to the Class A Certificates,
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the Mezzanine Certificates and the Class B Certificates out of the Reserve
Fund), the Trustee shall distribute to itself all remaining amounts on deposit
in Portion 1 of the Reserve Fund which were deposited in the Reserve Fund on
account of the Group II Senior Cap Agreement. On the Distribution Date on which
the Certificate Principal Balance of the Group III Senior Certificates has been
reduced to zero, after making all other distributions on such Distribution Date
(including to the Class A Certificates, the Mezzanine Certificates and the Class
B Certificates out of the Reserve Fund), the Trustee shall distribute to itself
all remaining amounts on deposit in Portion 1 of the Reserve Fund which were
deposited in the Reserve Fund on account of the Group III Senior Cap Agreement.
On the Distribution Date on which the Certificate Principal Balance of the
Mezzanine Certificates and the Class B Certificates has been reduced to zero,
after making all other distributions on such Distribution Date (including to the
Class A Certificates, the Mezzanine Certificates and the Class B Certificates
out of the Reserve Fund), the Trustee shall distribute to itself all remaining
amounts on deposit in Portion 1 of the Reserve Fund which were deposited in the
Reserve Fund on account of the Subordinate Cap Agreement. On the Distribution
Date on which the Trustee has distributed to itself all remaining amounts on
deposit in Portion 1 of the Reserve Fund, the Trustee shall distribute all
remaining amounts in Portion 2 of the Reserve Fund to the Class C Certificates.
(iii) On the earlier of the Distribution Date in August 2035 and
the termination of the Trust after giving effect to all other
distributions pursuant to this Section 4.01, the Trustee shall
withdraw from the Final Maturity Reserve Account funds on deposit
therein and shall distribute such amounts in the following order of
priority:
(a) concurrently, to the Class A Certificates, in reduction of
their respective Certificate Principal Balances, pro rata,
based on their Certificate Principal Balances, until the
Certificate Principal Balances thereof have been reduced to
zero;
(b) to the Mezzanine Certificates and the Class B Certificates,
in reduction of their respective Certificate Principal
Balances, in the following order of priority: first to the
Class M-1 Certificates, second to the Class M-2
Certificates, third to the Class M-3 Certificates, fourth to
the Class M-4 Certificates, fifth to the Class M-5
Certificates, sixth to the Class M-6 Certificates, seventh
to the Class M-7 Certificates, eighth to the Class M-8
Certificates, ninth to the Class M-9 Certificates, tenth to
the Class M-10 Certificates, eleventh to the Class B-1
Certificates, twelfth to the Class B-2 Certificates and
thirteenth to the Class B-3 Certificates, in each case until
the Certificate Principal Balances thereof have been reduced
to zero;
(c) concurrently, to the Class A Certificates, up to the amount
of the related Monthly Interest Distributable Amount and any
Unpaid Interest Shortfall Amount for such Classes remaining
unpaid after giving effect to all other distributions
pursuant to this Section 4.01, in each case allocated among
the Class A Certificates, pro rata,
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based on their Monthly Interest Distributable Amounts and
any Unpaid Interest Shortfall Amounts;
(d) to the Mezzanine Certificates and the Class B Certificates,
up to the amount of the related Monthly Interest
Distributable Amount for such Classes remaining unpaid after
giving effect to all other distributions pursuant to this
Section 4.01, allocated among the Mezzanine Certificates and
the Class B Certificates in the following order of priority:
first to the Class M-1 Certificates, second to the Class M-2
Certificates, third to the Class M-3 Certificates, fourth to
the Class M-4 Certificates, fifth to the Class M-5
Certificates, sixth to the Class M-6 Certificates, seventh
to the Class M-7 Certificates, eighth to the Class M-8
Certificates, ninth to the Class M-9 Certificates, tenth to
the Class M-10 Certificates, eleventh to the Class B-1
Certificates, twelfth to the Class B-2 Certificates and
thirteenth to the Class B-3 Certificates;
(e) to the Mezzanine Certificates and the Class B Certificates,
up to the amount of any related Unpaid Interest Shortfall
Amount for such Classes remaining unpaid after giving effect
to all other distributions pursuant to this Section 4.01,
allocated among the Mezzanine Certificates and the Class B
Certificates in the following order of priority: first to
the Class M-1 Certificates, second to the Class M-2
Certificates, third to the Class M-3 Certificates, fourth to
the Class M-4 Certificates, fifth to the Class M-5
Certificates, sixth to the Class M-6 Certificates, seventh
to the Class M-7 Certificates, eighth to the Class M-8
Certificates, ninth to the Class M-9 Certificates, tenth to
the Class M-10 Certificates, eleventh to the Class B-1
Certificates, twelfth to the Class B-2 Certificates and
thirteenth to the Class B-3 Certificates;
(f) concurrently, to the Class A Certificates, up to the amount
of the related Net WAC Rate Carryover Amount remaining
unpaid after giving effect to all other distributions
pursuant to this Section 4.01, allocated among the Class A
Certificates, pro rata, based on their unpaid Net WAC Rate
Carryover Amounts;
(g) to the Mezzanine Certificates and the Class B Certificates,
up to the amount of the related Net WAC Rate Carryover
Amount remaining unpaid after giving effect to all other
distributions pursuant to this Section 4.01, in the
following order of priority: first to the Class M-1
Certificates, second to the Class M-2 Certificates, third to
the Class M-3 Certificates, fourth to the Class M-4
Certificates, fifth to the Class M-5 Certificates, sixth to
the Class M-6 Certificates, seventh to the Class M-7
Certificates, eighth to the Class M-8 Certificates, ninth to
the Class M-9 Certificates, tenth to the Class M-10
Certificates, eleventh to the
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Class B-1 Certificates, twelfth to the Class B-2
Certificates and thirteenth to the Class B-3 Certificates;
(h) concurrently, to the Class I-A2 Certificates, the Class
II-A2 Certificates and the Class III-A1A Certificates, up to
the amount of the related Allocated Realized Loss Amount
remaining unpaid after giving effect to all other
distributions pursuant to this Section 4.01, allocated among
the Class I-A2 Certificates, the Class II-A2 Certificates
and the Class III-A1A Certificates, pro rata, based on their
unpaid Allocated Realized Loss Amounts;
(i) to the Mezzanine Certificates and the Class B Certificates,
up to the amount of the related Allocated Realized Loss
Amount remaining unpaid after giving effect to all other
distributions pursuant to this Section 4.01, in the
following order of priority: first to the Class M-1
Certificates, second to the Class M-2 Certificates, third to
the Class M-3 Certificates, fourth to the Class M-4
Certificates, fifth to the Class M-5 Certificates, sixth to
the Class M-6 Certificates, seventh to the Class M-7
Certificates, eighth to the Class M-8 Certificates, ninth to
the Class M-9 Certificates, tenth to the Class M-10
Certificates, eleventh to the Class B-1 Certificates,
twelfth to the Class B-2 Certificates and thirteenth to the
Class B-3 Certificates;
(j) to the Supplemental Interest Account for payment to the Swap
Counterparty, any unpaid Trust Swap Payments, Swap
Reimbursement Amounts and Swap Termination Payments;
(k) concurrently, to the Class A Certificates, up to the amount
of the related Prepayment Interest Shortfalls and Relief Act
Interest Shortfalls remaining unpaid after giving effect to
all other distributions pursuant to this Section 4.01,
allocated among the Class A Certificates, pro rata, based on
their unpaid Prepayment Interest Shortfalls and Relief Act
Interest Shortfalls;
(l) to the Mezzanine Certificates and the Class B Certificates,
up to the amount of the related Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls remaining
unpaid after giving effect to all other distributions
pursuant to this Section 4.01, in the following order of
priority: first to the Class M-1 Certificates, second to the
Class M-2 Certificates, third to the Class M-3 Certificates,
fourth to the Class M-4 Certificates, fifth to the Class M-5
Certificates, sixth to the Class M-6 Certificates, seventh
to the Class M-7 Certificates, eighth to the Class M-8
Certificates, ninth to the Class M-9 Certificates, tenth to
the Class M-10 Certificates, eleventh to the Class B-1
Certificates, twelfth to the Class B-2 Certificates and
thirteenth to the Class B-3 Certificates; and
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(m) to the Class C Certificates, any remaining amount.
(iv) On each Distribution Date, the Trustee shall withdraw from
the Supplemental Interest Account the amounts equal to the Trust Swap
Payments and any Swap Reimbursement Amounts that are required to be
deposited in the Supplemental Interest Account pursuant to this
Section 4.01 with respect to such Distribution Date and shall
distribute such amounts to the Swap Counterparty on such Distribution
Date. On each Distribution Date, the Trustee shall withdraw from the
Supplemental Interest Account the Swap Counterparty Payment deposited
therein by the Swap Counterparty and shall distribute it to the Class
III-A1 Certificates in the amount of the related Monthly Interest
Distributable Amount for such Class for such Distribution Date.
(v) On each Distribution Date, all amounts representing
Prepayment Charges in respect of the Mortgage Loans received during
the related Prepayment Period shall be withdrawn from the Distribution
Account and distributed by the Trustee to the Class P Interest, and
shall not be available for distribution to any other Class of
Certificates. On each Distribution Date, all amounts representing any
Master Servicer Prepayment Charge Payment Amounts paid by or collected
by the Master Servicer during the related Prepayment Period shall be
withdrawn from the Distribution Account and distributed by the Trustee
to the Class P Interest, and shall not be available for distribution
to any other Class of Certificates. The payment of the foregoing
amounts in respect of such Regular Interests shall not reduce the
Uncertificated Principal Balance thereof.
(e) Without limiting the provisions of Section 9.01(b), by acceptance
of the Class R Certificates the Holders of the Class R Certificates agree, and
it is the understanding of the parties hereto, to pledge their rights to receive
any amounts otherwise distributable to the Holders of the Class R Certificates
(and such rights are hereby assigned and transferred) to the Holders of the
Class C Certificates to be paid to the Holders of the Class C Certificates. By
acceptance of the Class R Certificates, the Holders of the Class R Certificates
direct the Trustee to pay any amounts due to the Holders of the Class R
Certificates on the first Distribution Date to the Holders of the Class C
Certificates.
(f) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Payments in respect of each Class of Certificates on each Distribution Date will
be made to the Holders of the respective Class of record on the related Record
Date (except as otherwise provided in this Section 4.01 or Section 9.01
respecting the final distribution on such Class), based on the aggregate
Percentage Interest represented by their respective Certificates, and shall be
made by wire transfer of immediately available funds to the account of any such
Holder at a bank or other entity having appropriate facilities therefor, if such
Holder shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date immediately prior to such Distribution Date and is the
registered owner of Certificates having an initial aggregate Certificate
Principal Balance or Notional Amount that is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the Original Class Certificate Principal
Balance or Original Class Notional Amount of such Class of Certificates, or
otherwise by check mailed by first class mail to the address of such Holder
appearing in the Certificate
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Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate shall be paid to
the Depository, which shall credit the amount of such distribution to the
accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. All such credits
and disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions of
the Certificates. None of the Trustee, the Depositor, the Master Servicer or the
Seller shall have any responsibility therefor except as otherwise provided by
applicable law.
(g) The rights of the Certificateholders to receive distributions in
respect of the Certificates, and all interests of the Certificateholders in such
distributions, shall be as set forth in this Agreement. None of the Holders of
any Class of Certificates, the Trustee or the Master Servicer shall in any way
be responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(h) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
shall be made on the next Distribution Date, the Trustee shall, no later than
three (3) days before the related Distribution Date, mail to the NIMS Insurer
and each Holder on such date of such Class of Certificates a notice to the
effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date
but only upon presentation and surrender of such Certificates at the
office of the Trustee therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the related Accrual Period.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or Holders
to tender their Certificates shall, on such date, be set aside and held in trust
by the Trustee and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 4.01(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee shall, directly or through an agent, mail a final
notice to the remaining non-tendering Certificateholders concerning surrender of
their Certificates but shall continue to hold any remaining funds for the
benefit of non-tendering Certificateholders. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in such
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trust fund. If within one year after the final notice any such Certificates
shall not have been surrendered for cancellation, the Trustee shall pay to
Credit Suisse First Boston LLC and WaMu Capital Corp., equally, all such
amounts, and all rights of non-tendering Certificateholders in or to such
amounts shall thereupon cease. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(h).
(i) Notwithstanding anything to the contrary herein, (i) in no event
shall the Certificate Principal Balance of a Class I-A2 Certificate, Class II-A2
Certificate, Class III-A1A Certificate, Mezzanine Certificate or Class B
Certificate be reduced more than once in respect of any particular amount both
(a) allocated to such Certificate in respect of Realized Losses pursuant to
Section 4.06 and (b) distributed to such Certificate in reduction of the
Certificate Principal Balance thereof pursuant to this Section 4.01, and (ii) in
no event shall the Uncertificated Principal Balance of a REMIC Regular Interest
be reduced more than once in respect of any particular amount both (a) allocated
to such REMIC Regular Interest in respect of Realized Losses pursuant to Section
4.06 and (b) distributed on such REMIC Regular Interest in reduction of the
Uncertificated Principal Balance thereof pursuant to Section 4.05.
(j) Any amounts distributed to REMIC CX on any Distribution Date in
respect of the Class C Interest under Section 4.01(d)(i) shall, on such
Distribution Date, be distributed by REMIC CX to the Holders of the Class C
Certificates. Any amounts remaining in REMIC CX shall be distributed to the
Holders of the Class R-CX Certificates in respect of the Class R-CX Interest.
Any amounts distributed to REMIC PX on any Distribution Date in respect of the
Class P Interest shall, on such Distribution Date, be distributed by REMIC PX to
the Holders of the Class P Certificates. Any amounts remaining in REMIC PX shall
be distributed to the Holders of the Class R-PX Certificates in respect of the
Class R-PX Interest. For the avoidance of doubt, the provisions of Sections
4.01(f), 4.01(g) and 4.01(h) shall apply to the Class C Certificates and the
Class P Certificates.
Section 4.02 Preference Claims.
The Trustee shall promptly notify the NIMS Insurer of any proceeding or the
institution of any action, of which a Responsible Officer of the Trustee has
actual knowledge, seeking the avoidance as a preferential transfer under
applicable bankruptcy, insolvency, receivership or similar law (a "Preference
Claim") of any distribution made with respect to the Class C Certificates or the
Class P Certificates. Each Holder of the Class C Certificates or the Class P
Certificates, by its purchase of such Certificates, the Master Servicer and the
Trustee hereby agree that the NIMS Insurer may at any time during the
continuation of any proceeding relating to a Preference Claim direct all matters
relating to such Preference Claim, including, without limitation, (i) the
direction of any appeal of any order relating to such Preference Claim and (ii)
the posting of any surety, supersedeas or performance bond pending any such
appeal. In addition and without limitation of the foregoing, the NIMS Insurer
shall be subrogated to the rights of the Master Servicer, the Trustee and each
Holder of the Class C Certificates and the Class P Certificates in the conduct
of any such Preference Claim, including, without limitation, all rights of any
party to an adversary proceeding action with respect to any court order issued
in connection with any such Preference Claim; provided, however, that the NIMS
Insurer will not have any rights with respect to any Preference Claim set forth
in this paragraph unless the
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Trustee, as indenture trustee or indenture administrator with respect to the
Insured NIM Notes or the holder of any Insured NIM Notes has been required to
relinquish a distribution made on the Class C Certificates, the Class P
Certificates or the Insured NIM Notes, as applicable, and the NIMS Insurer made
a payment in respect of such relinquished amount.
Section 4.03 Statements.
(a) On each Distribution Date, the Trustee shall prepare and make
available to each Holder of the Regular Certificates, the Master Servicer, the
NIMS Insurer, the indenture trustee under the Indenture and the Rating Agencies,
and two Business Days prior to each Distribution Date, the Trustee shall prepare
and make available to the Swap Counterparty and any designee of the Swap
Counterparty, a statement by electronic medium (as set forth in the penultimate
paragraph of this Section 4.03(a)), based on information provided to the Trustee
by the Master Servicer, the Cap Provider or the Swap Counterparty as to the
distributions made on such Distribution Date:
(i) the amount of the distribution made on such Distribution Date
to the Holders of each Class of Regular Certificates, separately
identified, allocable to principal and the amount of the distribution
made to the Holders of the Class P Certificates allocable to
Prepayment Charges and Master Servicer Prepayment Charge Payment
Amounts;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Regular Certificates (other than
the Class P Certificates), allocable to interest, separately
identified;
(iii) the Overcollateralized Amount, the Overcollateralization
Release Amount, the Overcollateralization Deficiency Amount and the
Overcollateralization Target Amount as of such Distribution Date and
the Excess Overcollateralized Amount for the Mortgage Pool, for such
Distribution Date;
(iv) by Loan Group and in the aggregate amount of servicing
compensation received by the Master Servicer with respect to the
related Due Period and such other customary information as the Trustee
deems necessary or desirable, or which a Certificateholder reasonably
requests, to enable Certificateholders to prepare their tax returns;
(v) the Group I Interest Remittance Amount, the Group II Interest
Remittance Amount and the Group III Interest Remittance Amount and the
Group I Principal Remittance Amount, the Group II Principal Remittance
Amount and the Group III Principal Remittance Amount for such
Distribution Date;
(vi) the aggregate amount of Advances for the related Due Period,
the amount of unrecovered Advances (after giving effect to Advances
made on the Distribution Date) outstanding and the amount of
Nonrecoverable Advances for such Distribution Date;
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(vii) the aggregate Stated Principal Balance of the Group I
Mortgage Loans, the Group II Mortgage Loans and the Group III Mortgage
Loans at the Close of Business at the end of the related Due Period;
(viii) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the related Determination Date;
(ix) by Loan Group and in the aggregate, the number and aggregate
unpaid principal balance of Mortgage Loans (a) delinquent 30-59 days,
(b) delinquent 60-89 days, (c) delinquent 90 or more days in each
case, as of the last day of the preceding calendar month provided,
however that any aggregate unpaid principal balance of Mortgage Loans
shall be reported as of the last day of the related Due Period, (d) as
to which foreclosure proceedings have been commenced and (e) with
respect to which the related Mortgagor has filed for protection under
applicable bankruptcy laws, with respect to whom bankruptcy
proceedings are pending or with respect to whom bankruptcy protection
is in force;
(x) with respect to any Mortgage Loan that became an REO Property
during the preceding Prepayment Period, the unpaid principal balance
and the Principal Balance of such Mortgage Loan as of the date it
became an REO Property;
(xi) the total number and cumulative principal balance of all REO
Properties as of the Close of Business of the last day of the
preceding Prepayment Period;
(xii) by Loan Group and in the aggregate, the aggregate amount of
Principal Prepayments made during the related Prepayment Period;
(xiii) by Loan Group and in the aggregate, the aggregate amount
of Realized Losses incurred during the related Prepayment Period and
the cumulative amount of Realized Losses;
(xiv) the aggregate amount of Extraordinary Trust Fund expenses
withdrawn from the Collection Account or the Distribution Account for
such Distribution Date;
(xv) the Certificate Principal Balance of the Class A
Certificates, the Mezzanine Certificates, the Class B Certificates and
the Class C Certificates, after giving effect to the distributions
made on such Distribution Date, and the Notional Amount of the Class C
Certificates, after giving effect to the distributions made on such
Distribution Date;
(xvi) the Monthly Interest Distributable Amount in respect of the
Class A Certificates, the Mezzanine Certificates, the Class B
Certificates and the Class C Certificates for such Distribution Date
and the Unpaid Interest Shortfall
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Amount, if any, with respect to the Class A Certificates, the
Mezzanine Certificates and the Class B Certificates for such
Distribution Date;
(xvii) by Loan Group and in the aggregate, the aggregate amount
of any Net Prepayment Interest Shortfalls for such Distribution Date,
to the extent not covered by payments by the Master Servicer pursuant
to Section 3.24, and the aggregate amount of any Relief Act Interest
Shortfalls for such Distribution Date;
(xviii) the Credit Enhancement Percentage for such Distribution
Date;
(xix) the related Net WAC Rate Carryover Amount for the Class A
Certificates, the Mezzanine Certificates and the Class B Certificates,
if any, for such Distribution Date and the amount remaining unpaid
after reimbursements therefor on such Distribution Date;
(xx) the Trustee Fee on such Distribution Date;
(xxi) whether a Stepdown Date, a Trigger Event or a Sequential
Trigger Event has occurred;
(xxii) the Available Funds;
(xxiii) the respective Pass-Through Rates applicable to the Class
A Certificates, the Mezzanine Certificates, the Class B Certificates
and the Class C Certificates for such Distribution Date and the
Pass-Through Rate applicable to the Class A Certificates, the
Mezzanine Certificates and the Class B Certificates for the
immediately succeeding Distribution Date;
(xxiv) by Loan Group and in the aggregate, the Principal Balance
of Mortgage Loans repurchased by the Seller;
(xxv) any other information that is required by the Code and
regulations thereunder to be made available to Certificateholders;
(xxvi) the amount on deposit in the Reserve Fund;
(xxvii) (A) the dollar amount of payments received related to
claims under the PMI Policy during the related Prepayment Period (and
the number of Mortgage Loans to which such payments related) and (B)
the aggregate dollar amount of payments received related to claims
under the PMI Policy since the Cut-off Date (and the number of
Mortgage Loans to which such payments related);
(xxviii) (A) the dollar amount of claims made under the PMI
Policy that were denied during the related Prepayment Period (and the
number of Mortgage Loans to which such denials related) and (B) the
aggregate dollar amount of claims made under the PMI Policy that were
denied since the Cut-off Date (and the number of Mortgage Loans to
which such denials related);
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(xxix) for such Distribution Date, the amount of any payment made
by the Cap Provider under each of the Cap Agreements;
(xxx) the amount of Subsequent Recoveries and Gross Subsequent
Recoveries for the related Prepayment Period and the cumulative amount
of Subsequent Recoveries and Gross Subsequent Recoveries in the
aggregate and for each of Loan Group I, Loan Group II and Loan Group
III;
(xxxi) the Trust Swap Payment, the Swap Counterparty Payment, the
Swap Termination Payment payable by the Trust, the Swap Termination
Payment payable by the Swap Counterparty, and the Swap Reimbursement
Payment for such Distribution Date and any Trust Swap Payments, Swap
Counterparty Payments, Swap Termination Payments and Swap
Reimbursement Payments unpaid from prior Distribution Dates;
(xxxii) the Group I Final Maturity Reserve Amount, the Group II
Final Maturity Reserve Amount, the Group III Final Maturity Reserve
Amount, the Supplemental Final Maturity Reserve Amount, the Aggregate
Final Maturity Reserve Amount and the aggregate amount on deposit in
the Final Maturity Reserve Account for such Distribution Date and on
the earlier of the Distribution Date in August 2035 and the
termination of the Trust Fund, the amount distributed from the Final
Maturity Reserve Account; and
(xxxiii) with respect to each Mortgage Loan prepaid in full or in
part during the related Prepayment Period, whether the Prepayment
Charge is required with respect to such Mortgage Loan, the amount of
such Prepayment Charge and the amount actually collected with respect
to such Prepayment Charge.
The Trustee shall make such statement (and, at its option, any additional
files containing the same information in an alternative format) available each
month to Certificateholders, the Master Servicer, the NIMS Insurer, the Cap
Provider, the Swap Counterparty and the Rating Agencies via the Trustee's
internet website. The Trustee's internet website shall initially be located at
xxxxx://xxx.xxx.xx.xxx/xxxx. Assistance in using the website can be obtained by
calling the Trustee's customer service desk at 0-000-000-0000. Parties that are
unable to use the above distribution options are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk and
indicating such. The Trustee shall have the right to change the way such
statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Trustee shall provide timely
and adequate notification to all above parties regarding any such changes.
In the case of information furnished pursuant to subclauses (i) through
(iii) above, the amounts shall be expressed in a separate section of the report
as a dollar amount for each Class for each $1,000 original dollar amount as of
the Closing Date.
(b) Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon written request, furnish to each Person who at any
time during the calendar year was a Certificateholder of a Regular Certificate,
if requested in writing by such Person, such information as is reasonably
necessary to provide to such Person a statement containing the
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information set forth in subclauses (i) through (ii) above, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
prepared and furnished by the Trustee to Certificateholders pursuant to any
requirements of the Code as are in force from time to time.
(c) On each Distribution Date, the Trustee shall forward to the
Holders of the Residual Certificates and the NIMS Insurer a copy of the reports
forwarded to the Regular Certificateholders in respect of such Distribution Date
with such other information as the Trustee deems necessary or appropriate.
(d) Within a reasonable period of time after the end of each calendar
year, the Trustee shall deliver to each Person who at any time during the
calendar year was a Holder of a Residual Certificate, if requested in writing by
such Person, such information as is reasonably necessary to provide to such
Person a statement containing the information provided pursuant to the previous
paragraph aggregated for such calendar year or applicable portion thereof during
which such Person was a Holder of a Residual Certificate. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that substantially
comparable information shall be prepared and furnished to Certificateholders by
the Trustee pursuant to any requirements of the Code as from time to time in
force.
(e) On each Distribution Date the Trustee shall provide Bloomberg
Financial Markets, L.P. ("Bloomberg") CUSIP level factors for each Class of
Certificates as of such Distribution Date, using a format and media mutually
acceptable to the Trustee and Bloomberg.
Section 4.04 Remittance Reports; Advances.
(a) On or before the 18th day of each calendar month commencing in
September 2005, or if such 18th day is not a Business Day, the Business Day
immediately following such 18th day, but in no event later than such date which
would allow the Trustee to submit a claim to the NIMS Insurer under the
Indenture, the Master Servicer shall deliver to the NIMS Insurer and the Trustee
by telecopy or electronic mail (or by such other means as the Master Servicer,
the NIMS Insurer and the Trustee, as the case may be, may agree from time to
time) a Remittance Report with respect to the related Distribution Date. Not
later than each Master Servicer Remittance Date (or, in the case of certain
information, as agreed between the Trustee and the Master Servicer, not later
than four Business Days after the end of each Due Period), the Master Servicer
shall deliver or cause to be delivered to the Trustee in addition to the
information provided on the Remittance Report, such other information reasonably
available to it with respect to the Mortgage Loans as the Trustee may reasonably
require to perform the calculations necessary to make the distributions
contemplated by Section 4.01 and to prepare the statements to Certificateholders
contemplated by Section 4.03. The Trustee shall not be responsible to recompute,
recalculate or verify any information provided to it by the Master Servicer.
(b) The amount of Advances to be made by the Master Servicer for any
Distribution Date shall equal, subject to Section 4.04(d), the sum of (i) the
aggregate amount of Monthly Payments (with each interest portion thereof net of
the related Servicing Fee), due on the related Due Date in respect of the
Mortgage Loans, which Monthly Payments were
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delinquent as of the close of business on the related Determination Date, plus
(ii) with respect to each REO Property, which REO Property was acquired during
or prior to the related Prepayment Period and as to which such REO Property an
REO Disposition did not occur during the related Prepayment Period, an amount
equal to the excess, if any, of the Monthly Payments (with each interest portion
thereof net of the related Servicing Fee) that would have been due on the
related Due Date in respect of the related Mortgage Loans, over the net income
from such REO Property transferred to the Distribution Account pursuant to
Section 3.23 for distribution on such Distribution Date.
On or before 3:00 p.m. New York time on the Master Servicer Remittance
Date, the Master Servicer shall remit in immediately available funds to the
Trustee for deposit in the Distribution Account an amount equal to the aggregate
amount of Advances, if any, to be made in respect of the Mortgage Loans and REO
Properties for the related Distribution Date either (i) from its own funds or
(ii) from the Collection Account, to the extent of funds held therein for future
distribution (in which case, it will cause to be made an appropriate entry in
the records of Collection Account that amounts held for future distribution have
been, as permitted by this Section 4.04, used by the Master Servicer in
discharge of any such Advance) or (iii) in the form of any combination of (i)
and (ii) aggregating the total amount of Advances to be made by the Master
Servicer with respect to the Mortgage Loans and REO Properties. Any amounts held
for future distribution and so used shall be appropriately reflected in the
Master Servicer's records and replaced by the Master Servicer by deposit in the
Collection Account on or before any future Master Servicer Remittance Date to
the extent that the Available Funds for the related Distribution Date
(determined without regard to Advances to be made on the Master Servicer
Remittance Date) shall be less than the total amount that would be distributed
to the Classes of Certificateholders pursuant to Section 4.01 on such
Distribution Date if such amounts held for future distributions had not been so
used to make Advances. The Trustee will provide notice to the NIMS Insurer and
the Master Servicer by telecopy by the close of business on any Master Servicer
Remittance Date in the event that the amount remitted by the Master Servicer to
the Trustee on such date is less than the Advances required to be made by the
Master Servicer for the related Distribution Date.
(c) The obligation of the Master Servicer to make such Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
Section 4.04(d) below, and, with respect to any Mortgage Loan, shall continue
until the payment of the Mortgage Loan in full or the recovery of all
Liquidation Proceeds thereon.
(d) Notwithstanding anything herein to the contrary, no Advance or
Servicing Advance shall be required to be made hereunder by the Master Servicer
if such Advance or Servicing Advance would, if made, constitute a Nonrecoverable
Advance. The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance or Servicing Advance, if
made, would constitute a Nonrecoverable Advance, shall be evidenced by an
Officers' Certificate of the Master Servicer delivered to the NIMS Insurer, the
Depositor and the Trustee.
Section 4.05 Distributions on the REMIC Regular Interests.
(a) On each Distribution Date, the Trustee shall cause the sum of the
Group I Interest Remittance Amount, the Group II Interest Remittance Amount, the
Group III Interest
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Remittance Amount, the Group I Principal Remittance Amount, the Group II
Principal Remittance Amount and the Group III Principal Remittance Amount, in
the following order of priority, to be distributed by REMIC 1 to REMIC 2 on
account of the REMIC 1 Regular Interests or withdrawn from the Distribution
Account and distributed to the Holders of the Class R Certificates (in respect
of the Class R-1 Interest), as the case may be:
(i) first, to the Holders of REMIC 1 Regular Interests A, G1-A,
G1-B, G2-A, G2-B, G3-A, G3-B, and P, pro rata, an amount equal to (A)
the Uncertificated Accrued Interest for each such REMIC 1 Regular
Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates.
(ii) second, to the Holders of REMIC 1 Regular Interests G1-A,
G1-B, G2-A, G2-B, G3-A, and G3-B in such a manner as to keep: (A) the
Uncertificated Principal Balance of REMIC 1 Regular Interest G1-A
equal to 1/10 the aggregate Certificate Principal Balance of the Group
I Senior Certificates; (B) the Uncertificated Principal Balance of
REMIC 1 Regular Interest G1-B equal to 1/10 the Group I Subordinate
Amount; (C) the Uncertificated Principal Balance of REMIC 1 Regular
Interest G2-A equal to 1/10 the aggregate Certificate Principal
Balance of the Group II Senior Certificates; (D) the Uncertificated
Principal Balance of REMIC 1 Regular Interest G2-B equal to 1/10 the
Group II Subordinate Amount; (E) the Uncertificated Principal Balance
of REMIC 1 Regular Interest G3-A equal to 1/10 the aggregate
Certificate Principal Balance of the Group III Senior Certificates;
and (F) the Uncertificated Principal Balance of REMIC 1 Regular
Interest G3-B equal to 1/10 the Group III Subordinate Amount; in each
case until the Uncertificated Principal Balances of such REMIC 1
Regular Interests have been reduced to zero; and
(iii) then, to the Holders of REMIC 1 Regular Interests A and P,
in that order, in each case until the Uncertificated Principal
Balances of such REMIC 1 Regular Interests have been reduced to zero;
and
(iv) thereafter, to the Holders of the Class R Certificates in
respect of the Class R-1 Interest.
(b) On each Distribution Date, the Trustee shall cause the sum of the
Group I Interest Remittance Amount, the Group II Interest Remittance Amount, the
Group III Interest Remittance Amount, the Group I Principal Remittance Amount,
the Group II Principal Remittance Amount and the Group III Principal Remittance
Amount, in the following order of priority, to be distributed by REMIC 2 to
REMIC 3 on account of the REMIC 2 Regular Interests or withdrawn from the
Distribution Account and distributed to the Holders of the Class R Certificates
(in respect of the Class R-2 Interest), as the case may be:
(i) first, to the Holders of REMIC 2 Regular Interest FMR IO, an
amount equal to (A) the Uncertificated Accrued Interest for such REMIC
1 Regular Interest for such Distribution Date plus (B) any amounts in
respect thereof remaining unpaid from previous Distribution Dates;
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(ii) second, to the Holders of REMIC 2 Regular Interests A,
G1-SR, G2-SR, G3-SR, SUB-A, Swap, and P, pro rata, an amount equal to
(A) the Uncertificated Accrued Interest for each such REMIC 1 Regular
Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates;
(iii) third, to the Holders of REMIC 2 Regular Interests G1-SR,
G2-SR, G3-SR, SUB-A, and Swap in such a manner as to keep: (A) the
Uncertificated Principal Balance of REMIC 2 Regular Interest G1-SR
equal to the Uncertificated Principal Balance of REMIC 1 Regular
Interest G1-A; (B) the Uncertificated Principal Balance of REMIC 2
Regular Interest G2-SR equal to the Uncertificated Principal Balance
of REMIC 1 Regular Interest G2-A; (C) the Uncertificated Principal
Balance of REMIC 2 Regular Interest G3-SR equal to the Uncertificated
Principal Balance of REMIC 1 Regular Interest G3-A; (D) the
Uncertificated Principal Balance of REMIC 2 Regular Interest Swap
equal to 1/10 the Certificate Balance of the Class III-A1
Certificates; and (E) the Uncertificated Principal Balance of REMIC 2
Regular Interest SUB-A equal to the excess of (x) 1/10 of the sum of
the Group I Subordinate Amount, the Group II Subordinate Amount and
the Group III Subordinate Amount over (y) the Uncertificated Principal
Balance of REMIC 2 Regular Interest Swap; in each case until the
Uncertificated Principal Balances of such REMIC 2 Regular Interests
have been reduced to zero; and
(iii) then, to the Holders of REMIC 2 Regular Interests A and P,
in that order, in each case until the Uncertificated Principal
Balances of such REMIC 2 Regular Interests have been reduced to zero;
and
(iv) thereafter, to the Holders of the Class R Certificates in
respect of the Class R-2 Interest.
(c) On each Distribution Date, the Trustee shall cause the sum of the
Group I Interest Remittance Amount, the Group II Interest Remittance Amount, the
Group III Interest Remittance Amount, the Group I Principal Remittance Amount,
the Group II Principal Remittance Amount and the Group III Principal Remittance
Amount, in the following order of priority, to be distributed by REMIC 3 to
REMIC 4 on account of the REMIC 3 Regular Interests or withdrawn from the
Distribution Account and distributed to the Holders of the Class R Certificates
(in respect of the Class R-3 Interest), as the case may be:
(i) first, to the Holders of REMIC 3 Regular Interests FMR IO and
Swap IO an amount equal to (A) the Uncertificated Accrued Interest for
each such REMIC 3 Regular Interest for such Distribution Date, plus
(B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates;
(ii) second, to the Holders of REMIC 3 Regular Interests AA, IA1,
IA2, IIA1, IIA2, IIIA1, IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0,
X0, X0, X0, X0, X0, M10, B1, B2, B3 and ZZ, pro rata, an amount equal
to (A) the Uncertificated Accrued Interest for each such REMIC 3
Regular Interest for such Distribution Date, plus (B) any amounts in
respect thereof remaining unpaid from
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previous Distribution Dates. Amounts payable as Uncertificated Accrued
Interest in respect of REMIC 3 Regular Interest ZZ shall be reduced
and deferred when the REMIC 3 Overcollateralized Amount is less than
the REMIC 3 Overcollateralization Target Amount, by the lesser of (x)
the amount of such difference and (y) the Maximum ZZ Uncertificated
Accrued Interest Deferral Amount and such amount will be payable to
the Holders of REMIC 3 Regular Xxxxxxxxx XX0, XX0, IIA1, IIA2, IIIA1,
IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0, X0, X0, X0, X0, X0, M10,
B1, B2 and B3 in the same proportion as the Extra Principal
Distribution Amount is allocated to the Corresponding Certificates;
(iii) third, to the Holders of REMIC 3 Regular Xxxxxxxx 0XXX,
0XXX, 0XXX, SUB GRP, and XX, pro rata, in an amount equal to (A) the
Uncertificated Accrued Interest for each such REMIC 3 Regular Interest
for such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates;
(iv) fourth, an amount equal to 50% of the remainder of the
Available Funds for such Distribution Date after the distributions in
clauses (i), (ii), and (iii) allocated as follows:
(a) 98.00% to the Holders of REMIC 3 Regular Interests AA
and P, in that order, until the Uncertificated Principal Balance
of such REMIC 3 Regular Interest is reduced to zero, provided,
however, that REMIC 3 Regular Interest P shall not be reduced
until the Distribution Date immediately following the expiration
of the latest Prepayment Charge as identified on the Prepayment
Charge Schedule or any Distribution Date thereafter, at which
point such amount shall be distributed to REMIC 3 Regular
Interest P, until $100 has been distributed pursuant to this
clause;
(b) to the Holders of REMIC 3 Regular Xxxxxxxxx XX0, XX0,
IIA1, IIA2, IIIA1, IIIA1A, IIIA2, IIIA3, IIIA4, X0, X0, X0, X0,
X0, X0, X0, X0, X0, M10, B1, B2 and B3, 1.00% of such remainder,
in the same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Principal
Balances of such REMIC 3 Regular Interests are reduced to zero;
(c) to the Holders of REMIC 3 Regular Interest ZZ, 1.00% of
such remainder, until the Uncertificated Principal Balance of
such REMIC 2 Regular Interest is reduced to zero; then
(d) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-1 Interest);
(iv) fourth, an amount equal to 50% of the remainder of the
Available Funds for such Distribution Date, after the distributions in
clauses (i), (ii), and (iii) allocated as follows:
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(a) first to the Holders of REMIC 3 Regular Xxxxxxxx 0XXX,
0XXX, 0XXX, and SUB GRP in such a manner as to keep the
Uncertificated Principal Balance of each REMIC 3 Regular Interest
ending with the designation "GRP" equal to 1% of the aggregate
Certificate Principal Balances of the Senior Certificates in the
related Loan Group (determined as of the current Distribution
Date), and the Uncertificated Principal Balance of REMIC 3
Regular Interest SUB GRP equal to 1% of the sum of the Group I
Subordinate Amount, the Group II Subordinate Amount and the Group
III Subordinate Amount, as of the current Distribution Date; and
then to the Holder of REMIC 3 Regular Interest XX, in each case
until the Uncertificated Principal Balances of the REMIC 3
Regular Interests have been reduced to zero; and
(b) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-1 Interest).
(d) On each Distribution Date, all amounts representing
Prepayment Charges in respect of the Mortgage Loans received during
the related Prepayment Period will be distributed by REMIC 1 to REMIC
2 in respect of the REMIC 1 Regular Interest P, from REMIC 2 to REMIC
3 in respect of the REMIC 2 Regular Interest P, from REMIC 3 to REMIC
4 in respect of REMIC 3 Regular Interest P, and from REMIC 4 to the
Holders of REMIC 3 Regular Interest P. The payment of the foregoing
amounts to the Holders of such REMIC Regular Interest P shall not
reduce the Uncertificated Principal Balances thereof.
Section 4.06 Allocation of Realized Losses.
(a) Prior to each Determination Date, the Master Servicer shall
determine as to each Mortgage Loan and REO Property: (i) the total amount of
Realized Losses, if any, incurred in connection with any Final Recovery
Determinations made during the related Prepayment Period; (ii) whether and the
extent to which such Realized Losses constituted Bankruptcy Losses; and (iii)
the respective portions of such Realized Losses allocable to interest and
allocable to principal. Prior to each Determination Date, the Master Servicer
shall also determine as to each Mortgage Loan: (i) the total amount of Realized
Losses, if any, incurred in connection with any Deficient Valuations made during
the related Prepayment Period; and (ii) the total amount of Realized Losses, if
any, incurred in connection with Debt Service Reductions in respect of Monthly
Payments due during the related Due Period. The information described in the two
preceding sentences that is to be supplied by the Master Servicer shall be
evidenced by an Officers' Certificate delivered to the NIMS Insurer and the
Trustee by the Master Servicer prior to the Determination Date immediately
following the end of (i) in the case of Bankruptcy Losses allocable to interest,
the Due Period during which any such Realized Loss was incurred, and (ii) in the
case of all other Realized Losses, the Prepayment Period during which any such
Realized Loss was incurred.
(b) If on any Distribution Date after giving effect to all Realized
Losses incurred with respect to the Mortgage Loans during or prior to the
related Due Period and distributions of principal with respect to the Class A
Certificates, the Mezzanine Certificates and the Class B Certificates on such
Distribution Date, the Uncertificated Principal Balance of the
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Class C Interest is equal to zero, Realized Losses equal to the
Undercollateralized Amount shall be allocated by the Trustee on such
Distribution Date as follows: first, to the Class B-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero, second, to the
Class B-2 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero, third, to the Class B-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero, fourth, to the Class M-10
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero, fifth, to the Class M-9 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero, sixth, to the Class M-8 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero,
seventh, to the Class M-7 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero, eighth, to the Class M-6 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero, ninth, to
the Class M-5 Certificates, until the Certificate Principal Balance thereof has
been reduced to zero, tenth, to the Class M-4 Certificates until the Certificate
Principal Balance thereof has been reduced to zero, eleventh, to the Class M-3
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero, twelfth, to the Class M-2 Certificates, until the Certificate Principal
Balance thereof is reduced to zero, and thirteenth, to the Class M-1
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero. In addition, after the aggregate Certificate Principal Balance of the
Mezzanine Certificates and the Class B Certificates is reduced to zero, the
remaining Realized Losses on the Group I Mortgage Loans will be allocated to the
Class I-A2 Certificates, the remaining Realized Losses on the Group II Mortgage
Loans will be allocated to the Class II-A2 Certificates and an amount equal to
the remaining Realized Losses on the Group III Mortgage Loans multiplied by the
Group III Fraction will be allocated to the Class III-A1A Certificates, in each
case until the Certificate Principal Balance thereof has been reduced to zero.
All Realized Losses to be allocated to the Certificate Principal Balances of the
Class I-A2 Certificates, the Class II-A2 Certificates, the Class III-A1A
Certificates, the Mezzanine Certificates and the Class B Certificates on any
Distribution Date shall be so allocated after the actual distributions to be
made on such date as provided in Section 4.01. All references above to the
Certificate Principal Balance of the Class I-A2 Certificates, the Class II-A2
Certificates, the Class III-A1A Certificates, the Mezzanine Certificates and the
Class B Certificates shall be to the Certificate Principal Balance of the Class
I-A2 Certificates, the Class II-A2 Certificates, the Class III-A1A Certificates,
the Mezzanine Certificates and the Class B Certificates immediately prior to the
relevant Distribution Date, before reduction thereof by any Realized Losses or
increase thereof by any Subsequent Recoveries, in each case to be allocated to
such Class I-A2 Certificates, Class II-A2 Certificates, Class III-A1A
Certificates, Mezzanine Certificates and Class B Certificates on such
Distribution Date.
Any allocation of Realized Losses to a Class I-A2 Certificate, Class
II-A2 Certificate, Class III-A1A Certificate, Mezzanine Certificate or Class B
Certificate on any Distribution Date shall be made by reducing the Certificate
Principal Balance thereof by the amount so allocated. No allocations of any
Realized Losses shall be made to the Class A Certificates (other than the Class
I-A2 Certificates, the Class II-A2 Certificates and the Class III-A1A
Certificates) or the Class P Certificates. Any Realized Losses that reduce the
distributions in respect of and/or the Uncertificated Principal Balance of the
Class C Interest, shall be allocated by the Trustee to reduce the distributions
in respect of and/or the Certificate Principal Balance of the Class C
Certificates.
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(c) (i) Realized Losses on the Mortgage Loans shall be allocated by
the Trustee on each Distribution Date to REMIC 1 Regular Interest A. If the
Uncertificated Principal Balance of REMIC 1 Regular Interest A has been reduced
to zero, Realized Losses on the Mortgage Loans in any Loan Group shall be
allocated to the REMIC 1 Regular Interests related to such Loan Group in such a
manner as to keep the Uncertificated Principal Balances of the REMIC 1 Regular
Interests with the designation "-A" equal to 10% of the aggregate Certificate
Principal Balance of the Senior Certificates in such Loan Group, and to keep the
Uncertificated Principal Balances of the REMIC 1 Regular Interests with the
designation "-B" equal to 10% of the Subordinate Amount for such Loan Group.
(ii) Realized Losses on the Mortgage Loans shall be allocated by the
Trustee on each Distribution Date to REMIC 2 Regular Interest A. If the
Uncertificated Principal Balance of REMIC 2 Regular Interest A has been reduced
to zero, Realized Losses on the Mortgage Loans in any Loan Group shall be
allocated to the REMIC 2 Regular Interests related to such Loan Group in such a
manner as to keep the Uncertificated Principal Balances of the REMIC 2 Regular
Interests with the designation "-SR" equal to 10% of the aggregate Certificate
Principal Balance of the Senior Certificates in such Loan Group, to keep the
Uncertificated Principal Balances of the REMIC 2 Regular Interest Swap equal to
10% of the aggregate Certificate Principal Balance of the Class III-A1
Certificates, and to keep the Uncertificated Principal Balance of REMIC 2
Regular Interest SUB-A equal to the excess of (x) 10% of the sum of the Group I
Subordinate Amount, the Group II Subordinate Amount and the Group III
Subordinate Amount over (y) the Uncertificated Principal Balance of REMIC 2
Regular Interest Swap.
(iii) 50% of all Realized Losses on the Mortgage Loans shall be
allocated by the Trustee on each Distribution Date to the following REMIC 3
Regular Interests in the specified percentages, as follows:
first, to Uncertificated Accrued Interest payable to the REMIC 3
Regular Interests AA and ZZ up to an aggregate amount equal to the REMIC 3
Interest Loss Allocation Amount, 98% and 2%, respectively;
second, to the Uncertificated Principal Balances of the REMIC 3
Regular Interests AA and ZZ up to an aggregate amount equal to the REMIC 3
Principal Loss Allocation Amount, 98% and 2%, respectively;
third, to the Uncertificated Principal Balances of REMIC 3 Regular
Interests AA, B3 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest B3 has been reduced to zero;
fourth, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, B2 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest B2 has been reduced to zero;
fifth, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, B1 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest B1 has been reduced to zero;
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sixth, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, M10 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest M10 has been reduced to zero;
seventh, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, M9 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest M9 has been reduced to zero;
eighth, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, M8 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest M8 has been reduced to zero;
ninth, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, M7 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest M7 has been reduced to zero;
tenth, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, M6 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest M6 has been reduced to zero;
eleventh, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, M5 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest M5 has been reduced to zero;
twelfth, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, M4 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest M4 has been reduced to zero;
thirteenth, to the Uncertificated Principal Balances of REMIC 3
Regular Interest AA, M3 and ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 3 Regular Interest M3 has been reduced
to zero;
fourteenth, to the Uncertificated Principal Balances of REMIC 3
Regular Interest AA, M2 and ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 3 Regular Interest M2 has been reduced
to zero; and
fifteenth, to the Uncertificated Principal Balances of REMIC 3 Regular
Interest AA, M1 and ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 3 Regular Interest M1 has been reduced to zero.
(iv) 50% of all Realized Losses on the Mortgage Loans shall be
allocated by the Trustee on each Distribution Date to REMIC 3 Regular Xxxxxxxx
0XXX, 0XXX, 0XXX, SUB GRP, and XX, as follows:
after all distributions have been made on such Distribution Date, Realized
Losses shall be applied in such a manner as to keep the Uncertificated Principal
Balance of each REMIC 3 Regular Interest ending with the designation "GRP" equal
to 1% of the aggregate Certificate Principal Balances of the Senior Certificates
in the related Loan Group (determined as of the
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current Distribution Date), and the Uncertificated Principal Balance of REMIC 3
Regular Interest SUB GRP equal to 1% of the sum of the Group I Subordinate
Amount, the Group II Subordinate Amount, and the Group III Subordinate Amount;
and then to REMIC 3 Regular Interest XX.
(d) If on any Distribution Date Allocated Realized Loss Amounts are to
be reinstated due to Subsequent Recoveries, the Allocated Realized Loss Amounts
shall be reinstated by the Trustee on such Distribution Date to increase the
Certificate Principal Balances of the Class I-A2 Certificates, the Class II-A2
Certificates, the Class III-A1A Certificates, the Mezzanine Certificates and the
Class B Certificates in the following order of priority, in each case until the
related Allocated Realized Loss Amount has been reduced to zero: first, any
Allocated Realized Loss Amounts to be reinstated due to Subsequent Recoveries
with respect to the Group I Mortgage Loans shall be reinstated to the Class I-A2
Certificates, any Allocated Realized Loss Amounts to be reinstated due to
Subsequent Recoveries with respect to the Group II Mortgage Loans shall be
reinstated to the Class II-A2 Certificates and any Allocated Realized Loss
Amounts to be reinstated due to Subsequent Recoveries with respect to the Group
III Mortgage Loans shall be reinstated to the Class III-A1A Certificates; and
then any Allocated Realized Loss Amounts to be reinstated due to Subsequent
Recoveries with respect to all Mortgage Loans shall be reinstated to the
Mezzanine Certificates and the Class B Certificates in the following order:
first, to the Class M-1 Certificates, second to the Class M-2 Certificates,
third to the Class M-3 Certificates, fourth to the Class M-4 Certificates, fifth
to the Class M-5 Certificates, sixth to the Class M-6 Certificates, seventh to
the Class M-7 Certificates, eighth to the Class M-8 Certificates, ninth to the
Class M-9 Certificates, tenth to the Class M-10 Certificates, eleventh to the
Class B-1 Certificates, twelfth to the Class B-2 Certificates and thirteenth to
the Class B-3 Certificates. All Subsequent Recoveries to be allocated to the
Certificate Principal Balances of the Class I-A2 Certificates, the Class II-A2
Certificates, the Class III-A1A Certificates, the Mezzanine Certificates or the
Class B Certificates on any Distribution Date shall be so allocated after the
actual distributions to be made on such date as provided in Section 4.01. All
references above to the Certificate Principal Balance of the Class I-A2
Certificates, the Class II-A2 Certificates, the Class III-A1A Certificates, the
Mezzanine Certificates and the Class B Certificates shall be to the Certificate
Principal Balance of the Class I-A2 Certificates, the Class II-A2 Certificates,
the Class III-A1A Certificates, the Mezzanine Certificates and the Class B
Certificates immediately prior to the relevant Distribution Date, before
reduction thereof by any Realized Losses or increase thereof by any Subsequent
Recoveries, in each case to be allocated to the Class I-A2 Certificates, the
Class II-A2 Certificates, the Class III-A1A Certificates, the Mezzanine
Certificates and the Class B Certificates on such Distribution Date.
Any Allocated Realized Loss Amounts to be reinstated to a Certificate
on any Distribution Date due to Subsequent Recoveries shall be made by
increasing the Certificate Principal Balance thereof by the amount so
reinstated. No allocations of any Subsequent Recoveries shall be made to the
Class A Certificates (other than the Class I-A2 Certificates, the Class II-A2
Certificates and the Class III-A1A Certificates) or the Class P Certificates.
(e) (i) If on any Distribution Date Subsequent Recoveries occurred in
the related Prepayment Period, the amount of such Subsequent Recoveries shall be
allocated among the REMIC 1 Regular Interests first in such a manner as to
maintain the Uncertificated Balances
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of the REMIC 1 Regular Interests in the manner described in Section 4.06(c)(i)
and then shall be allocated to REMIC 1 Regular Interest A.
(ii) If on any Distribution Date Subsequent Recoveries occurred in the
related Prepayment Period, the amount of such Subsequent Recoveries shall be
allocated among the REMIC 2 Regular Interests first in such a manner as to
maintain the Uncertificated Balances of the REMIC 2 Regular Interests in the
manner described in Section 4.06(c)(ii) and then shall be allocated to REMIC 2
Regular Interest A.
(iii) If on any Distribution Date Subsequent Recoveries occurred in
the related Prepayment Period, the amount of such Subsequent Recoveries shall be
allocated among the REMIC 1 Regular Interests as follows:
(i) 50% of the Subsequent Recoveries from all Loan Groups
shall be allocated among the REMIC 3 Regular Interests in the
same proportions and amounts, but in the reverse order, as
Realized Losses were allocated under Section 4.06(c)(iii).
(ii) 50% of the Subsequent Recoveries from all Loan Groups
shall be allocated in the same proportions, but in reverse order,
as the Realized Losses were allocated under Section 4.06(c)(iv).
Section 4.07 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee shall
comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
Section 4.08 Commission Reporting.
(a) Within 15 days after each Distribution Date, the Trustee shall, in
accordance with industry standards and applicable regulations, file with the
Commission via the Electronic Data Gathering Analysis and Retrieval system, a
Form 8-K with a copy of the statement to Certificateholders for such
Distribution Date as an Exhibit thereto. Prior to January 30, in the year
following the year of execution of this Agreement, the Trustee shall file in
accordance with industry standards a Form 15 Suspension Notification with
respect to the Trust Fund. Prior to March 30, in the year following the year of
execution of this Agreement, the Depositor shall execute and the Trustee shall
file a Form 10-K, in substance conforming to industry standards and applicable
regulations, with respect to the Trust Fund together with the accompanying
certification described below. The Trustee shall provide the Form 10-K to the
Depositor by March 20 (or the preceding Business Day if such day is not a
Business Day) of the year that such Form 10-K is required to be filed. The
Depositor shall execute such Form 10-K and return the original to the Trustee by
March 25 (or the preceding Business Day if such day is not a Business Day). The
Trustee shall prepare, execute, file and deliver on behalf of the
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Depositor Form 8-Ks required to be filed under the Exchange Act so long as no
certification in respect of such Form 8-K is required by the Commission. The
Depositor shall prepare and the appropriate person shall execute, in accordance
with the Exchange Act or any other applicable law, any certification required
under the Exchange Act or any other applicable law to accompany the Form 10-K or
any other periodic report. The Depositor hereby grants to the Trustee a limited
power of attorney to execute and file each such document on behalf of the
Depositor, provided, however, that the Trustee shall not execute the Form 10-K
on behalf of the Depositor. Such power of attorney shall continue until the
earlier of (i) receipt by the Trustee from the Depositor of written termination
of such power of attorney and (ii) the termination of the Trust Fund. The
Depositor agrees to promptly furnish to the Trustee, from time to time upon
request, such further information, reports and financial statements within its
control related to this Agreement and the Mortgage Loans as the Trustee
reasonably deems appropriate to prepare and file all necessary reports with the
Commission. The Trustee shall have no responsibility to file any items other
than those specified in this Section.
Section 4.09 Supplemental Interest Account.
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, a separate non-interest bearing account for the benefit of the Holders
of the Class III-A1 Certificates (the "Supplemental Interest Account"), into
which the Depositor shall initially deposit $1,000. The Supplemental Interest
Account shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee held pursuant to this
Agreement.
(b) The Trustee shall deposit into the Supplemental Interest Account
any amounts required to be paid by the Trust for payment to the Supplemental
Interest Account pursuant to Section 4.01 and shall distribute from the
Supplemental Interest Account any such amounts to the Swap Counterparty as
required by Section 4.01(d)(iv). The Trustee shall deposit into the Supplemental
Interest Account any amounts received from the Swap Counterparty and shall
distribute from the Supplemental Interest Account any such amounts to the
Holders of the Class III-A1 Certificates as required pursuant to Section
4.01(d)(iv).
(c) Funds in the Supplemental Interest Account shall be invested in
Eligible Investments. The Class C Certificates shall evidence ownership of the
Supplemental Interest Account for federal income tax purposes and the Holders of
the majority of the Percentage Interest thereof shall direct the Trustee, in
writing, as to investment of amounts on deposit therein. In the absence of
written instructions from the Holders of the Class C Certificates as to
investment of funds on deposit in the Supplemental Interest Account, such funds
shall be invested in Deutsche Bank Cash Management Fund 541 for so long as such
investment complies with clause (vi) of the definition of Permitted Investments.
(d) Upon termination of the Trust Fund, any amounts remaining in the
Supplemental Interest Account shall be distributed pursuant to the priorities
set forth in Section 4.01(d)(iii).
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Section 4.10 Final Maturity Reserve Account.
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, a separate non-interest bearing account for the benefit of the Holders
of the Class A Certificates, the Mezzanine Certificates, the Class B
Certificates and the Class C Certificates (the "Final Maturity Reserve
Account"), into which the Depositor shall initially deposit $1,000. The Final
Maturity Reserve Account shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled with,
any other moneys, including, without limitation, other moneys of the Trustee
held pursuant to this Agreement.
(b) The Trustee shall deposit into the Final Maturity Reserve Account
any Group I Final Maturity Reserve Amount, Group II Final Maturity Reserve
Amount, Group III Final Maturity Reserve Amount and the Supplemental Final
Maturity Reserve Amount pursuant to Section 4.01. The Trustee shall distribute
the funds in the Final Maturity Reserve Account pursuant to Section
4.01(d)(iii).
(c) Funds in the Final Maturity Reserve Account shall be held by the
Trustee uninvested. The Class C Certificates shall evidence ownership of the
Final Maturity Reserve Account for federal income tax purposes.
(d) Upon termination of the Trust Fund, any amounts remaining in the
Final Maturity Reserve Account to which the Swap Counterparty is entitled shall
be distributed as provided in Section 4.01(d)(iv) and any amounts remaining in
the Final Maturity Reserve Account to which the Trust is entitled shall be
distributed pursuant to the priorities in Section 4.01(d)(iii).
(e) For federal income tax purposes, any Certificateholder that
receives a principal payment from the Final Maturity Reserve Account shall be
treated as selling a portion of its Certificate to the Holder of the Class C
Certificates and as having received the amount of the principal payment from the
Holder of the Class C Certificates as the proceeds of the sale. The portion of
the Certificate that is treated as having been sold shall equal the amount of
the corresponding reduction in the Certificate Principal Balance of such
Certificate. Principal payments received from the Final Maturity Reserve Account
shall not be treated as distributions from any REMIC created hereby. All
principal distributions from the Final Maturity Reserve Account shall be
accounted for hereunder in accordance with this Section 4.10(e).
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates in the aggregate will represent the entire
beneficial ownership interest in the Mortgage Loans and all other assets
included in REMIC 1.
The Certificates will be substantially in the forms annexed hereto as
Exhibits A-1 through A-27. The Certificates of each Class will be issuable in
registered form only, in denominations of authorized Percentage Interests as
described in the definition thereof. Each Certificate will share ratably in all
rights of the related Class.
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Upon original issue, the Certificates shall be executed by the Trustee and
authenticated and delivered by the Trustee, to or upon the order of the
Depositor. The Certificates shall be executed and attested by manual or
facsimile signature on behalf of the Trustee by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement or be valid for any purpose, unless
there appears on such Certificate a certificate of authentication substantially
in the form provided herein executed by the Trustee by manual signature, and
such certificate of authentication 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.
(b) The Book Entry Certificates shall initially be issued as one or
more Certificates held by the Book-Entry Custodian or, if appointed to hold such
Certificates as provided below, the Depository and registered in the name of the
Depository or its nominee and, except as provided below, registration of the
Book-Entry Certificates may not be transferred by the Trustee except to another
Depository that agrees to hold the Book-Entry Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to the Book-Entry
Certificates through the book-entry facilities of the Depository and, except as
provided below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. The Trustee is hereby initially appointed as the
Book-Entry Custodian and hereby agrees to act as such in accordance herewith and
in accordance with the agreement that it has with the Depository authorizing it
to act as such. The Book-Entry Custodian may, and if it is no longer qualified
to act as such, the Book-Entry Custodian shall, appoint, by a written instrument
delivered to the Depositor, the Master Servicer and if the Trustee is not the
Book-Entry Custodian, the Trustee and any other transfer agent (including the
Depository or any successor Depository) to act as Book-Entry Custodian under
such conditions as the predecessor Book-Entry Custodian and the Depository or
any successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of any such appointment of other than the Depository. If the Trustee
resigns or is removed in accordance with the terms hereof, successor Trustee or,
if it so elects, the Depository shall immediately succeed to its predecessor's
duties as Book-Entry Custodian. The Depositor shall have the right to inspect,
and to obtain copies of, any Certificates held as Book-Entry Certificates by the
Book-Entry Custodian.
The Trustee, the Master Servicer, the NIMS Insurer and the Depositor may
for all purposes (including the making of payments due on the Book-Entry
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the Book-Entry Certificates for the purposes
of the exercise by Certificateholders of the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
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Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. The Depositor is hereby authorized to
execute and deliver on behalf of the Trust the Letter of Representations to be
submitted on behalf of the Trust to the Depository and to perform the
obligations of the Issuer (as defined in the Letter of Representations)
thereunder. The Trustee is hereby authorized to execute and deliver as agent of
the Trust the Letter of Representations to be submitted on behalf of the Trust
to the Depository and to perform the obligations of the Agent (as defined in the
Letter of Representations) thereunder. Multiple requests and directions from,
and votes of, the Depository as Holder of the Book-Entry Certificates with
respect to any particular matter shall not be deemed inconsistent if they are
made with respect to different Certificate Owners. The Trustee may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository, and (B) the Depositor is unable to locate a qualified successor,
(ii) the Depositor notifies the Trustee and the Depository of its intent to
terminate the book-entry system through the Depository and, upon receipt of
notice of such intent from the Depository, the Depository Participants with a
position in the Book Entry Certificates agree to initiate such termination, or
(iii) after the occurrence of a Master Servicer Event of Default, Certificate
Owners representing in the aggregate not less than 51% of the Ownership
Interests of the Book-Entry Certificates advise the Trustee through the
Depository, in writing, that the continuation of a book-entry system through the
Depository is no longer in the best interests of the Certificate Owners, the
Trustee shall notify all Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to Certificate Owners requesting the same. Upon surrender to the Trustee of the
Book-Entry Certificates by the Book-Entry Custodian or the Depository, as
applicable, accompanied by registration instructions from the Depository for
registration of transfer, the Trustee shall issue the Definitive Certificates.
Such Definitive Certificates will be issued in minimum denominations of $25,000,
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $25,000 immediately prior to the issuance of
a Definitive Certificate shall be issued in a minimum denomination equal to the
amount represented by such Book-Entry Certificate. None of the Depositor, the
Master Servicer or the Trustee shall be liable for any delay in the 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
Depository shall be deemed to be imposed upon and performed by the Trustee, to
the extent applicable with respect to such Definitive Certificates, and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the provisions of
Section 8.12 a Certificate Register for the Certificates in which, subject to
such reasonable regulations as it may prescribe, the Trustee shall provide for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided.
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(b) No transfer, sale, pledge or other disposition of any Class B
Certificate, Class C Certificate, Class P Certificate or Residual Certificate
shall be made unless such disposition is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act"), and any
applicable state securities laws or is made in accordance with the 1933 Act and
laws. In the event of any such transfer of any Class B Certificate to be made
without registration under the Securities Act (other than in connection with the
initial sale of the Class B Certificates to the initial purchasers or the
initial issuance thereof), then the Trustee shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon) a
certificate from the Class B Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit J-1A hereto and a certificate from
such Class B Certificateholder's prospective transferee substantially in the
form attached as Exhibit J-1B hereto (which in the case of the Book-Entry
Certificates, the Class B Certificateholder and the Class B Certificateholder's
prospective transferee will be deemed to have represented such certification).
In the event of any such transfer of any Class C Certificate, Class P
Certificate or Residual Certificate (other than in connection with (i) the
initial transfer of any Class C Certificate, Class P Certificate or Residual
Certificates by the Depositor to the Seller, (ii) the transfer of any Class C
Certificate, Class P Certificate or Residual Certificates by the Seller to an
Affiliate of the Seller or to a trust, the depositor of which is an Affiliate of
the Seller, (iii) the transfer of any Class C Certificate, Class P Certificate
or Residual Certificates by an Affiliate of the Seller to one or more entities
sponsored by such Affiliate or to a trust, the depositor of which is one or more
entities sponsored by such Affiliate or (iv) a subsequent transfer of any Class
C Certificates, Class P Certificates or Residual Certificates to the Seller or
its designee by such entity or trust described in clauses (ii) or (iii) above to
which the Certificates were previously transferred in reliance on clauses (ii)
or (iii) above) (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached hereto as Exhibit J-2) under the 1933 Act, the Trustee and the
Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Trustee and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall not be an expense of the Trustee or the Depositor or (ii) the Trustee
shall require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit L) and the transferee to
execute an investment letter (in substantially the form attached hereto as
Exhibit J-2) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which investment letter shall not be an expense
of the Trustee or the Depositor. The Holder of a Class B Certificate, Class C
Certificate, Class P Certificate or Residual Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor
and the Trust Fund against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
(c) No transfer of a Class A Certificate, Mezzanine Certificate or
Class B Certificate shall be made unless the Trustee shall have received a
representation letter from the transferee of such Certificate, substantially in
the form set forth in Exhibit I, to the effect that either (i) such transferee
is neither a Plan nor a Person acting on behalf of any such Plan or using the
assets of any such Plan to effect such transfer or (ii) the acquisition and
holding of the Class A Certificate, the Mezzanine Certificate or the Class B
Certificate are eligible for exemptive relief under Prohibited Transaction Class
Exemption ("PTCE") 00-00, XXXX 00-0, XXXX 91-38,
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PTCE 95-60 or PTCE 96-23. Notwithstanding anything else to the contrary herein,
any purported transfer of a Class A Certificate, Mezzanine Certificate or Class
B Certificate on behalf of a Plan without the delivery to the Trustee of a
representation letter as described above shall be void and of no effect. If the
Class A Certificate, the Mezzanine Certificate or the Class B Certificate is a
Book-Entry Certificate, the transferee will be deemed to have made a
representation as provided in clause (i) or (ii) of this paragraph, as
applicable.
No transfer of a Class C Certificate, Class P Certificate or Residual
Certificate or any interest therein shall be made to any Plan subject to ERISA
or Section 4975 of the Code, any Person acting, directly or indirectly, on
behalf of any such Plan or any Person acquiring such Certificates with "Plan
Assets" of a Plan within the meaning of the Department of Labor regulation
promulgated at 29 C.F.R. Section 2510.3-101 ("Plan Assets") unless, in the case
of the Class C Certificates or the Class P Certificates, the Depositor, the
Trustee and the Master Servicer are provided with an Opinion of Counsel which
establishes to the satisfaction of the Depositor, the Trustee and the Master
Servicer that the purchase of such Certificates is permissible under applicable
law, will not constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Master
Servicer, the Trustee or the Trust Fund to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Master Servicer, the Trustee or
the Trust Fund. Neither an Opinion of Counsel nor any certification will be
required in connection with the (i) initial transfer of any Class C Certificate,
Class P Certificate or Residual Certificates by the Depositor to the Seller,
(ii) the transfer of any Class C Certificate, Class P Certificate or Residual
Certificates by the Seller to an Affiliate of the Seller or to a trust, the
depositor of which is an Affiliate of the Seller, (iii) the transfer of any
Class C Certificates, Class P Certificates or Residual Certificates by an
Affiliate of the Seller to one or more entities sponsored by such Affiliate or
to a trust the depositor of which is one or more entities sponsored by such
Affiliate or (iv) a subsequent transfer of any Class C Certificates, Class P
Certificates or Residual Certificates to the Seller or its designee by such
entity or trust described in clauses (ii) or (iii) above to which the
Certificates were previously transferred in reliance on clauses (ii) or (iii)
above (in which case, the Depositor, the Seller, any such Affiliate and such
entities sponsored by such Affiliate shall have deemed to have represented that
the applicable transferee is not a Plan or a Person investing Plan Assets) and
the Trustee shall be entitled to conclusively rely upon a representation (which,
upon the request of the Trustee, shall be a written representation) from the
Depositor of the status of each transferee, the Seller or such an Affiliate.
Each transferee of a Class C Certificate, Class P Certificate or Residual
Certificate shall sign a letter substantially in the form of Exhibit I to
demonstrate its compliance with this Section 5.02(c) (other than in connection
with the (i) initial transfer of any Class C Certificate, Class P Certificate or
Residual Certificates by the Depositor to the Seller, (ii) the transfer of any
Class C Certificate, Class P Certificate or Residual Certificates by the Seller
to an Affiliate of the Seller or to a trust, the depositor of which is an
Affiliate of the Seller, (iii) the transfer of any Class C Certificates, Class P
Certificates or Residual Certificates by an Affiliate of the Seller to one or
more entities sponsored by such Affiliate or to a trust the depositor of which
is one or more entities sponsored by such Affiliate or (iv) a subsequent
transfer of any Class C Certificates, Class P Certificates or Residual
Certificates to the Seller or its designee by such entity or trust described in
clauses (ii) or (iii) above to which the Certificates were previously
transferred in reliance on clauses (ii) or (iii) above).
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If any Certificate or any interest therein is acquired or held in violation
of the provisions of the preceding paragraphs, the next preceding permitted
beneficial owner will be treated as the beneficial owner of that Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any such Certificate
or interest therein was effected in violation of the provisions of the preceding
paragraph shall indemnify and hold harmless the Depositor, the Master Servicer,
the Trustee and the Trust Fund from and against any and all liabilities, claims,
costs or expenses incurred by those parties as a result of that acquisition or
holding.
(d) 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 appointed the Depositor or its designee as its attorney-in-fact
to negotiate the terms of any mandatory sale under clause (v) below and to
execute all instruments of transfer and to do all other things necessary in
connection with any such sale, and the rights of each Person acquiring any
Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall as a condition
to registration of the transfer, require delivery to it, in form and
substance satisfactory to it, of each of the following:
A. an affidavit in the form of Exhibit K hereto from the
proposed transferee to the effect that such transferee is a
Permitted Transferee and that it is not acquiring its Ownership
Interest in the Residual Certificate that is the subject of the
proposed transfer as a nominee, trustee or agent for any Person
who is not a Permitted Transferee; and
B. a covenant of the proposed transferee to the effect that
the proposed transferee agrees to be bound by and to abide by the
transfer restrictions applicable to the Residual Certificates.
(iv) Any attempted or purported transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section shall be absolutely null and void and shall vest no
rights in the purported transferee. If any purported transferee shall,
in violation of the provisions of this Section, become a Holder of a
Residual Certificate, then the prior Holder of such Residual
Certificate that is a Permitted Transferee shall, upon discovery that
the registration of transfer of such Residual Certificate was not in
fact permitted by this Section, be restored to all rights as Holder
thereof retroactive to the date of
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registration of transfer of such Residual Certificate. The Trustee
shall not be under any liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by
this Section or for making any distributions due on such Residual
Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long
as the Trustee received the documents specified in clause (iii). The
Trustee shall be entitled to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time
such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Trustee shall
be distributed and delivered by the Trustee to the prior Holder of
such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right
but not the obligation, without notice to the Holder of such Residual
Certificate or any other Person having an Ownership Interest therein,
to notify the Depositor to arrange for the sale of such Residual
Certificate. The proceeds of such sale, net of commissions (which may
include commissions payable to the Depositor or its affiliates in
connection with such sale), expenses and taxes due, if any, will be
remitted by the Trustee to the previous Holder of such Residual
Certificate that is a Permitted Transferee, except that in the event
that the Trustee determines that the Holder of such Residual
Certificate may be liable for any amount due under this Section or any
other provisions of this Agreement, the Trustee may withhold a
corresponding amount from such remittance as security for such claim.
The terms and conditions of any sale under this clause (v) shall be
determined in the sole discretion of the Trustee and it shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section, then the Trustee will provide to the
Internal Revenue Service, and to the persons designated in Section
860E(e)(3) of the Code, information needed to compute the tax imposed
under Section 860E(e)(1) of the Code on such transfer.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee, in form and substance satisfactory to the Trustee, (i) written
notification from each Rating Agency that the removal of the restrictions on
Transfer set forth in this Section will not cause such Rating Agency to
downgrade its rating of any of the Other NIM Notes, the Insured NIM Notes
(without giving effect to any insurance policy issued by the NIMS Insurer) or
the Certificates and (ii) an Opinion of Counsel to the effect that such removal
will not cause any REMIC created hereunder to fail to qualify as a REMIC.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the
Trustee designated from time to time for such purpose pursuant to Section 8.12,
the Trustee shall execute and authenticate and deliver, in
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the name of the designated Transferee or Transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Certificate may be
exchanged for other Certificates of the same Class with authorized denominations
and a like aggregate Percentage Interest, upon surrender of such Certificate to
be exchanged at any office or agency of the Trustee maintained for such purpose
pursuant to Section 8.12. Whenever any Certificates are so surrendered for
exchange the Trustee shall execute, authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Trustee) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of transfer
or exchange of Certificates of any Class, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange shall
be canceled by the Trustee and disposed of pursuant to its standard procedures.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Trustee or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (ii) there is delivered to the Trustee, the Depositor and
(in the case of a Class C Certificate or Class P Certificate) the NIMS Insurer
such security or indemnity as may be required by them to save each of them, and
the Trust Fund, harmless, then, in the absence of notice to the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Percentage Interest. Upon the issuance of any new Certificate under
this Section, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) in
connection therewith. Any duplicate Certificate issued pursuant to this Section,
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners.
The Master Servicer, the Depositor, the Trustee, the NIMS Insurer and any
agent of the Master Servicer, the Depositor, the Trustee or the NIMS Insurer may
treat the Person, including a Depository, in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.01 and for all other purposes whatsoever,
and none of the Master Servicer, the Depositor, the Trustee, the NIMS Insurer
nor any agent of any of them shall be affected by notice to the contrary.
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ARTICLE VI
THE MASTER SERVICER AND THE DEPOSITOR
Section 6.01 Liability of the Master Servicer and the Depositor.
The Depositor and the Master Servicer each shall be liable in accordance
herewith only to the extent of the obligations specifically imposed by this
Agreement and undertaken hereunder by the Depositor and the Master Servicer
herein.
Section 6.02 Merger or Consolidation of the Depositor or the Master Servicer.
Subject to the following paragraph, the Depositor will keep in full effect
its existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation. Subject to the following paragraph, the
Master Servicer will keep in full effect its existence, rights and franchises as
a corporation under the laws of the jurisdiction of its incorporation and its
qualification as an approved conventional seller/servicer for Xxxxxx Xxx or
Xxxxxxx Mac in good standing. The Depositor and the Master Servicer each will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
The Depositor or the Master Servicer may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Mae or Xxxxxxx Mac; and provided further that the Rating Agencies'
ratings of the Other NIM Notes, the Class A Certificates, the Mezzanine
Certificates and the Class B Certificates and the shadow rating of the Insured
NIM Notes (without giving effect to any insurance policy issued by the NIMS
Insurer) in effect immediately prior to such merger or consolidation will not be
qualified, reduced or withdrawn as a result thereof (as evidenced by a letter to
such effect from the Rating Agencies to the Trustee).
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer and
Others.
None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or any such
person against any breach of warranties, representations or covenants made
herein, or against any specific liability imposed on the Master Servicer or the
Depositor, as applicable, pursuant hereto, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or
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negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, the Master Servicer and any
director, officer, employee or agent of the Depositor or the Master Servicer may
rely in good faith on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Master Servicer and any director, officer, employee or agent
of the Depositor or the Master Servicer shall be indemnified and held harmless
by the Trust Fund against any loss, liability or expense incurred in connection
with any legal action relating to this Agreement or the Certificates, other than
any loss, liability or expense relating to any specific Mortgage Loan or
Mortgage Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) or any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. Neither the Depositor nor the Master Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and,
in its opinion, does not involve it in any expense or liability; provided,
however, that each of the Depositor and the Master Servicer may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, unless the
Depositor or the Master Servicer acts without the consent of Holders of
Certificates entitled to at least 51% of the Voting Rights (which consent shall
not be necessary in the case of litigation or other legal action by either to
enforce their respective rights or defend themselves hereunder), the legal
expenses and costs of such action and any liability resulting therefrom (except
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder) shall be expenses, costs
and liabilities of the Trust Fund, and the Depositor and the Master Servicer
shall be entitled to be reimbursed therefor from the Collection Account as and
to the extent provided in Section 3.11, any such right of reimbursement being
prior to the rights of the Certificateholders to receive any amount in the
Collection Account.
The Master Servicer (except the Trustee to the extent it has succeeded the
Master Servicer as required hereunder) indemnifies and holds the Trustee, the
Depositor and the Trust Fund harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, fees and expenses that the Trustee, the
Depositor or the Trust Fund may sustain in any way related to the failure of the
Master Servicer to perform its duties and service the Mortgage Loans in
compliance with the terms of this Agreement. The Master Servicer shall
immediately notify the Trustee, the NIMS Insurer and the Depositor if a claim is
made that may result in such claims, losses, penalties, fines, forfeitures,
legal fees or related costs, judgments, or any other costs, fees and expenses,
and the Master Servicer shall assume (with the consent of the Trustee) the
defense of any such claim and pay all expenses in connection therewith,
including reasonable counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against the Master Servicer, the
Trustee, the Depositor and/or the Trust Fund in respect of such claim. The
provisions of this paragraph shall survive the termination of this Agreement and
the payment of the outstanding Certificates.
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Section 6.04 Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties hereby
imposed on it except (i) upon determination that its duties hereunder are no
longer permissible under applicable law or (ii) with the written consent of the
Trustee and the NIMS Insurer and written confirmation from each Rating Agency
(which confirmation shall be furnished to the Depositor and the Trustee) that
such resignation will not cause such Rating Agency to reduce the then current
rating of any of the Other NIM Notes, the Class A Certificates, the Mezzanine
Certificates or the Class B Certificates or the shadow rating of the Insured NIM
Notes (without giving effect to any insurance policy issued by the NIMS
Insurer). Any such determination pursuant to clause (i) of the preceding
sentence permitting the resignation of the Master Servicer shall be evidenced by
an Opinion of Counsel to such effect obtained at the expense of the Master
Servicer and delivered to the Trustee. No resignation of the Master Servicer
shall become effective until the Trustee or a successor servicer reasonably
acceptable to the NIMS Insurer shall have assumed the Master Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Except as expressly provided herein, the Master Servicer shall not assign
or transfer any of its rights, benefits or privileges hereunder to any other
Person, nor delegate to or subcontract with, nor authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Master Servicer hereunder. The foregoing prohibition on assignment shall not
prohibit the Master Servicer from designating a Sub-Servicer as payee of any
indemnification amount payable to the Master Servicer hereunder; provided,
however, that as provided in Section 3.06 hereof, no Sub-Servicer shall be a
third-party beneficiary hereunder and the parties hereto shall not be required
to recognize any Sub-Servicer as an indemnitee under this Agreement. If,
pursuant to any provision hereof, the duties of the Master Servicer are
transferred to a successor master servicer, the entire amount of the Servicing
Fee and other compensation payable to the Master Servicer pursuant hereto shall
thereafter be payable to such successor master servicer.
Section 6.05 Rights of the Depositor, the NIMS Insurer and the Trustee in
Respect of the Master Servicer.
The Master Servicer shall afford (and any Sub-Servicing Agreement shall
provide that each Sub-Servicer shall afford) the Depositor, the NIMS Insurer and
the Trustee, upon reasonable notice, during normal business hours, access to all
records maintained by the Master Servicer (and any such Sub-Servicer) in respect
of the Master Servicer's rights and obligations hereunder and access to officers
of the Master Servicer (and those of any such Sub-Servicer) responsible for such
obligations. Upon request, the Master Servicer shall furnish to the Depositor,
the NIMS Insurer and the Trustee its (and any such Sub-Servicer's) most recent
financial statements and such other information relating to the Master
Servicer's capacity to perform its obligations under this Agreement that it
possesses. To the extent such information is not otherwise available to the
public, the Depositor, the NIMS Insurer and the Trustee shall not disseminate
any information obtained pursuant to the preceding two sentences without the
Master Servicer's (or any such Sub-Servicer's) written consent, except as
required pursuant to this Agreement or to the extent that it is necessary to do
so (i) in working with legal counsel, auditors, taxing authorities or other
governmental agencies, rating agencies or reinsurers or (ii) pursuant to any
law, rule, regulation, order, judgment, writ, injunction or decree of any court
or
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governmental authority having jurisdiction over the Depositor, the NIMS Insurer,
the Trustee or the Trust Fund, and in either case, the Depositor or the Trustee,
as the case may be, shall use, and the NIMS Insurer shall be deemed to have
agreed with the parties hereto to use, its best efforts to assure the
confidentiality of any such disseminated non-public information. The Depositor
may, but is not obligated to, enforce the obligations of the Master Servicer
under this Agreement and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer under this
Agreement or exercise the rights of the Master Servicer under this Agreement;
provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Master Servicer and is not obligated to
supervise the performance of the Master Servicer under this Agreement or
otherwise.
ARTICLE VII
DEFAULT
Section 7.01 Master Servicer Events of Default.
"Master Servicer Event of Default," wherever used herein, means any one of
the following events:
(i) any failure by the Master Servicer to remit to the Trustee
for distribution to the Certificateholders any payment (other than an
Advance required to be made from its own funds on any Master Servicer
Remittance Date pursuant to Section 4.04) required to be made under
the terms of the Certificates and this Agreement which continues
unremedied for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Depositor, the
Trustee (in which case notice shall be provided by telecopy), or to
the Master Servicer, the Depositor and the Trustee by the NIMS Insurer
or the Holders of Certificates entitled to at least 25% of the Voting
Rights; or
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any of the covenants or
agreements on the part of the Master Servicer contained in this
Agreement which continues unremedied for a period of 45 days (30 days
in the case of any failure to maintain a Sub-Servicing Agreement with
an eligible Sub-Servicer to the extent required in accordance with
Section 3.02(c)) after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Depositor or the Trustee, or
to the Master Servicer, the Depositor and the Trustee by the NIMS
Insurer or the Holders of Certificates entitled to at least 25% of the
Voting Rights and (ii) actual knowledge of such failure by a Servicing
Representative of the Master Servicer; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of
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a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceeding, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and if such proceeding
is being contested by the Master Servicer in good faith, such decree
or order shall have remained in force undischarged or unstayed for a
period of 60 days or results in the entry of an order for relief or
any such adjudication or appointment; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings
of or relating to it or of or relating to all or substantially all of
its property; or
(v) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors; or
(vi) [Reserved]; or
(vii) any failure of the Master Servicer to make, or cause an
Advancing Person to make, any Advance on any Master Servicer
Remittance Date required to be made from its own funds pursuant to
Section 4.04 which continues unremedied until 3:00 p.m. New York time
on the Business Day immediately following the Master Servicer
Remittance Date; or
(viii) the Master Servicer ceases to be an approved seller or
servicer of Xxxxxx Xxx.
If a Master Servicer Event of Default described in clauses (i) through (v)
of this Section shall occur, then, and in each and every such case, so long as
such Master Servicer Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the NIMS Insurer
or the Holders of Certificates entitled to at least 51% of Voting Rights, the
Trustee shall, by notice in writing to the NIMS Insurer and the Master Servicer
(and to the Depositor if given by the Trustee or to the Trustee if given by the
Depositor), terminate all of the rights and obligations of the Master Servicer
in its capacity as Master Servicer under this Agreement, to the extent permitted
by law, and in and to the Mortgage Loans and the proceeds thereof. If a Master
Servicer Event of Default described in clauses (vii) or (viii) hereof shall
occur, the Trustee shall, by notice in writing to the Master Servicer (delivered
immediately by facsimile and effective on the date of acknowledgement of receipt
in the case of a Master Servicer Event of Default described in clause (vii)),
the NIMS Insurer and the Depositor, terminate all of the rights and obligations
of the Master Servicer in its capacity as Master Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof. On or after the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section and, without limitation, the Trustee is hereby authorized and
empowered, as attorney-in-fact or otherwise, to execute and deliver on behalf of
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and at the expense of the Master Servicer, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees, at its sole cost
and expense, promptly (and in any event no later than ten Business Days
subsequent to such notice) to provide the Trustee with all documents and records
requested by it to enable it to assume the Master Servicer's functions under
this Agreement, and to cooperate with the Trustee in effecting the termination
of the Master Servicer's responsibilities and rights under this Agreement,
including, without limitation, the transfer within one Business Day to the
Trustee for administration by it of all cash amounts which at the time shall be
or should have been credited by the Master Servicer to the Collection Account
held by or on behalf of the Master Servicer, or any REO Account or Servicing
Account held by or on behalf of the Master Servicer or thereafter be received
with respect to the Mortgage Loans or any REO Property (provided, however, that
the Master Servicer shall continue to be entitled to receive all amounts accrued
or owing to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances or otherwise, and shall continue to be entitled
to the benefits of Section 6.03, notwithstanding any such termination, with
respect to events occurring prior to such termination). For purposes of this
Section 7.01, the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Default unless a Responsible Officer of Trustee assigned to
and working in the Trustee's Corporate Trust Office has actual knowledge thereof
or unless written notice of any event which is in fact such a Master Servicer
Event of Default is received by the Trustee and such notice references the
Certificates, any of the Trust REMICs or this Agreement.
The Trustee shall be entitled to be reimbursed by the Master Servicer (or
by the Trust Fund if the Master Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of servicing from the
predecessor master servicer, including without limitation, any costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to service the Mortgage Loans properly and
effectively.
Section 7.02 Trustee to Act; Appointment of Successor.
(a) On and after the time the Master Servicer receives a notice of
termination, the Trustee shall be the successor in all respects to the Master
Servicer in its capacity as Master Servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto and arising
thereafter, which shall be assumed by the Trustee (except for any
representations or warranties of the Master Servicer under this Agreement, the
responsibilities, duties and liabilities contained in Section 2.03(c) and its
obligation to deposit amounts in respect of losses pursuant to Section 3.12) by
the terms and provisions hereof including, without limitation, the Master
Servicer's obligations to make Advances pursuant to Section 4.04; provided,
however, that if the Trustee is prohibited by law or regulation from obligating
itself to make advances regarding delinquent Mortgage Loans, then the Trustee
shall not be obligated to make Advances pursuant to Section 4.04; and provided
further, that any failure to perform such duties or responsibilities caused by
the Master Servicer's failure to provide information required by Section 7.01
shall not be considered a default by the Trustee as successor to the Master
Servicer hereunder; provided, however, it is understood and acknowledged by the
parties that there will be a period of
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transition (not to exceed 90 days) before the servicing transfer is fully
effected. As compensation therefor, the Trustee shall be entitled to the
Servicing Fee and all funds relating to the Mortgage Loans to which the Master
Servicer would have been entitled if it had continued to act hereunder (other
than amounts which were due or would become due to the Master Servicer prior to
its termination or resignation). Notwithstanding anything herein to the
contrary, in no event shall the Trustee be liable for any Servicing Fee or for
any differential in the amount of the Servicing Fee paid hereunder and the
amount necessary to induce any successor Master Servicer to act as successor
Master Servicer under this Agreement and the transactions set forth or provided
for herein. After the Master Servicer receives a notice of termination,
notwithstanding the above and subject to the next paragraph, the Trustee may, if
it shall be unwilling to so act, or shall, if it is unable to so act or if it is
prohibited by law from making advances regarding delinquent Mortgage Loans, or
if the NIMS Insurer or the Holders of Certificates entitled to at least 51% of
the Voting Rights so request in writing to the Trustee, promptly appoint, or
petition a court of competent jurisdiction to appoint, an established mortgage
loan servicing institution acceptable to each Rating Agency, having a net worth
of not less than $15,000,000 and reasonably acceptable to the NIMS Insurer, as
the successor to the Master Servicer under this Agreement in the assumption of
all or any part of the responsibilities, duties or liabilities of the Master
Servicer under this Agreement.
No appointment of a successor to the Master Servicer under this Agreement
shall be effective until the assumption by the successor of all of the Master
Servicer's responsibilities, duties and liabilities hereunder. In connection
with such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Master Servicer as such
hereunder. The Depositor, the Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Pending appointment of a successor to the Master Servicer under this
Agreement, the Trustee shall act in such capacity as hereinabove provided.
Upon removal or resignation of the Master Servicer, the Trustee, with the
cooperation of the Depositor, (x) shall solicit bids for a successor Master
Servicer as described below and (y) pending the appointment of a successor
Master Servicer as a result of soliciting such bids, shall serve as Master
Servicer of the Mortgage Loans serviced by such predecessor Master Servicer. The
Trustee shall solicit, by public announcement, bids from housing and home
finance institutions, banks and mortgage servicing institutions meeting the
qualifications set forth in the first paragraph of this Section 7.02 (including
the Trustee or any affiliate thereof). Such public announcement shall specify
that the successor Master Servicer shall be entitled to the servicing
compensation agreed upon between the Trustee, the successor Master Servicer and
the Depositor; provided, however, that no such fee shall exceed the Servicing
Fee. Within thirty days after any such public announcement, the Trustee with the
cooperation of the Depositor, shall negotiate in good faith and effect the sale,
transfer and assignment of the servicing rights and responsibilities hereunder
to the qualified party submitting the highest satisfactory bid as to the price
they will pay to obtain such servicing. The Trustee, upon receipt of the
purchase price shall pay such purchase price to the Master Servicer being so
removed, after deducting from any sum received by the Trustee from the successor
to the Master Servicer in respect of such sale, transfer and assignment all
costs and expenses of any public announcement and of any sale, transfer and
assignment of the servicing rights and responsibilities reasonably incurred
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hereunder. After such deductions, the remainder of such sum shall be paid by the
Trustee to the Master Servicer at the time of such sale.
(b) If the Master Servicer fails to remit to the Trustee for
distribution to the Certificateholders any payment required to be made under the
terms of this Agreement (for purposes of this Section 7.02(b), a "Remittance")
because the Master Servicer is the subject of a proceeding under the Bankruptcy
Code and the making of such Remittance is prohibited by Section 362 of the
Bankruptcy Code, the Trustee shall upon written notice of such prohibition,
regardless of whether it has received a notice of termination under Section
7.01, shall be treated as though it had succeeded to the Master Servicer and
shall advance the amount of such Remittance by depositing such amount in the
Distribution Account on the related Distribution Date. The Trustee shall be
obligated to make such advance only if (i) such advance, in the good faith
judgment of the Trustee can reasonably be expected to be ultimately recoverable
from Stayed Funds and (ii) the Trustee is not prohibited by law from making such
advance or obligating itself to do so. Upon remittance of the Stayed Funds to
the Trustee or the deposit thereof in the Distribution Account by the Master
Servicer, a trustee in bankruptcy or a federal bankruptcy court, the Trustee may
recover the amount so advanced, without interest, by withdrawing such amount
from the Distribution Account; however, nothing in this Agreement shall be
deemed to affect the Trustee's rights to recover from the Master Servicer's own
funds interest on the amount of any such advance. If the Trustee at any time
makes an advance under this subsection which it later determines in its good
faith judgment will not be ultimately recoverable from the Stayed Funds with
respect to which such advance was made, the Trustee shall be entitled to
reimburse itself for such advance, without interest, by withdrawing from the
Distribution Account, out of amounts on deposit therein, an amount equal to the
portion of such advance attributable to the Stayed Funds.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination of the Master Servicer pursuant to Section
7.01 above or any appointment of a successor to the Master Servicer pursuant to
Section 7.02 above, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to the NIMS Insurer.
(b) Not later than the later of 60 days after the occurrence of any
event, which constitutes or which, with notice or lapse of time or both, would
constitute a Master Servicer Event of Default or five days after a Responsible
Officer of the Trustee becomes aware of the occurrence of such an event, the
Trustee shall transmit by mail to all Holders of Certificates and to the NIMS
Insurer notice of each such occurrence, unless such default or Master Servicer
Event of Default shall have been cured or waived.
Section 7.04 Waiver of Master Servicer Events of Default.
The Holders representing at least 66% of the Voting Rights evidenced by all
Classes of Certificates affected by any default or Master Servicer Event of
Default hereunder may, with the consent of the NIMS Insurer, waive such default
or Master Servicer Event of Default; provided, however, that a default or Master
Servicer Event of Default under clause (i) or (vii) of Section 7.01 may be
waived only by all of the Holders of the Regular Certificates and the NIMS
Insurer (as evidenced by the written consent of the NIMS Insurer). Upon any such
waiver of a default or
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Master Servicer Event of Default, such default or Master Servicer Event of
Default shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other
default or Master Servicer Event of Default or impair any right consequent
thereon except to the extent expressly so waived.
ARTICLE VIII
THE TRUSTEE
Section 8.01 Duties of Trustee.
The Trustee, prior to the occurrence of a Master Servicer Event of Default
and after the curing of all Master Servicer Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. During a Master Servicer Event of
Default, 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 enumerated in
this Agreement shall not be construed as a duty.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee shall take such action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to the Trustee's satisfaction,
the Trustee will provide notice thereof to the Certificateholders.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own misconduct; provided, however, that:
(i) Prior to the occurrence of a Master Servicer Event of
Default, and after the curing of all such Master Servicer Events of
Default which may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee
that conform to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
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(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of the NIMS Insurer or the Holders of
Certificates entitled to at least 25% of the Voting Rights relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement.
Section 8.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely conclusively upon and shall
be fully protected in acting or refraining from acting upon any
resolution, Officers' Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties and the manner of obtaining
consents and evidencing the authorization of the execution thereof
shall be subject to such reasonable regulations as the Trustee may
prescribe;
(ii) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such 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 NIMS Insurer or the
Certificateholders, pursuant to the provisions of this Agreement,
unless the NIMS Insurer or such Certificateholders shall have offered
to the Trustee security or indemnity satisfactory to it 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 a Master Servicer Event of
Default (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 a Master Servicer Event of Default
hereunder and after the curing of all Master Servicer Events of
Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
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document, unless requested in writing to do so by the NIMS Insurer or
the Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee not reasonably assured to the Trustee by the NIMS
Insurer or such Certificateholders, the Trustee may require reasonable
indemnity against such expense, or liability from the NIMS Insurer or
such Certificateholders as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents custodians, nominees or attorneys and shall not be
responsible for any willful misconduct or negligence of such agents,
custodians, nominees or attorneys (as long as such agents, custodians,
nominees or attorneys are appointed with due and proper care);
(vii) The Trustee shall not be personally liable for any loss
resulting from the investment of funds held in the Collection Account
or the Supplemental Interest Account at the direction of the Master
Servicer pursuant to Section 3.12 or the Holders of the majority of
the Percentage Interest in the Class C Certificates, pursuant to
Section 4.09, as applicable; and
(viii) Except as otherwise expressly provided herein, none of the
provisions of this Agreement shall require the Trustee to expend or
risk its own funds or otherwise to incur any liability, financial or
otherwise, in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers (not including expenses,
disbursements and advances incurred or made by the Trustee including
the compensation and the expenses and disbursements of its agents and
counsel, in the ordinary course of the Trustee's performance in
accordance with the provisions of this Agreement) if it shall have
reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not
assured to it.
(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 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
signature of the Trustee, the execution and authentication of the Trustee on the
Certificates, the acknowledgments of the Trustee contained in Article II and the
representations and warranties of the Trustee in Section 8.13) shall be taken as
the statements of the Depositor, and the Trustee shall not assume any
responsibility for their correctness. The Trustee makes no representations or
warranties as to the validity or sufficiency of this Agreement (other than as
specifically set forth in Section 8.13) or of the Certificates (other than
execution and authentication of the
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Trustee on the Certificates) or of any Mortgage Loan or related document. The
Trustee shall not be accountable for the use or application by the Depositor of
any of the Certificates or of the proceeds of the Certificates, or for the use
or application of any funds paid to the Depositor or the Master Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Master Servicer, other than any funds held by or on behalf of the
Trustee in accordance with Section 3.10.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual capacity or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee and may transact banking and/or trust business with the Seller, the
Depositor, the Master Servicer or their Affiliates.
Section 8.05 Trustee's Fees and Expenses.
(a) On the Closing Date, the Depositor shall pay to the Trustee as
specified in a separate agreement between the Depositor and the Trustee. The
Trustee shall withdraw from the Distribution Account on each Distribution Date
and pay to itself the Trustee Fee for such Distribution Date and one day's
interest earnings (net of losses) on amounts on deposit in the Distribution
Account. The right to receive the Trustee Fee may not be transferred in whole or
in part except in connection with the transfer of all of the Trustee's
responsibilities and obligations under this Agreement.
The Trustee, and any director, officer, employee or agent of the Trustee
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense (not including expenses, disbursements and advances
incurred or made by the Trustee, including the compensation and the expenses and
disbursements of its agents and counsel, in the ordinary course of the Trustee's
performance in accordance with the provisions of this Agreement) incurred by the
Trustee arising out of or in connection with the acceptance or administration of
its obligations (including, without limitation, its obligation to enter into the
Cap Agreements and the Swap Agreement) and duties under this Agreement, other
than any loss, liability or expense (i) in any way relating to the failure of
the Master Servicer to perform its duties and service the Mortgage Loans in
compliance with the terms of this Agreement, (ii) that constitutes a specific
liability of the Trustee pursuant to Section 10.01(c) or (iii) any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, including as a result of a breach
of the Trustee's obligations under Article X hereof. Any amounts payable to the
Trustee or any director, officer, employee or agent of the Trustee in respect of
the indemnification provided by this paragraph (a), or pursuant to any other
right of reimbursement from the Trust Fund that the Trustee or any director,
officer, employee or agent of the Trustee may have hereunder in its capacity as
such, may be withdrawn by the Trustee from the Distribution Account at any time.
Such indemnity shall survive the termination of this Agreement and the
resignation of the Trustee.
As a limitation on the foregoing with respect to certain expenses of the
Trustee, the Trustee shall receive from the Trust Fund amounts with respect to
indemnification for counsel fees and expenses (collectively, "Legal Fees") in
connection with any third-party litigation or
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other claims alleging violations of laws or regulations relating to consumer
lending and/or servicing of the Trust Fund (collectively, "Third Party Claims")
in an amount not greater than $25,000 per month, and $600,000 in the aggregate
(with amounts in excess of $25,000 for any month carried-forward to subsequent
months, until the $600,000 aggregate maximum is reached). The Trustee shall have
no obligation to incur additional expenses for which reimbursement is limited
pursuant to this paragraph in excess of the aggregate limit set forth above
unless it has received reasonable security or indemnity for such additional
expenses. The Certificateholders shall hold the Trustee harmless for any
consequences to such Certificateholders resulting from any failure of the
Trustee to incur any such additional expenses in excess of the aforementioned
aggregate limit.
(b) Without limiting the Master Servicer's indemnification obligations
under Section 6.03, the Master Servicer agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense resulting from a
breach of the Master Servicer's obligations and duties under this Agreement.
Such indemnity shall survive the termination or discharge of this Agreement and
the resignation or removal of the Trustee. Any payment under this Section
8.05(b) made by the Master Servicer to the Trustee shall be from the Master
Servicer's own funds, without reimbursement from the Trust Fund therefor.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or an association
(other than the Depositor, the Seller, the Master Servicer or any Affiliate of
the foregoing) 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. If such
corporation or association publishes reports of conditions at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
Section 8.07 Resignation or Removal of Trustee.
The Trustee may at any time resign and be discharged from the trust hereby
created by giving written notice thereof to the NIMS Insurer, the Depositor, the
Master Servicer and the Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee and to the successor Trustee acceptable to the NIMS Insurer and to the
Holders of Certificates entitled to at least 51% of the Voting Rights. A copy of
such instrument shall be delivered to the Certificateholders and the Master
Servicer by the Depositor. If no successor Trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 and shall fail to resign after written request
therefor by the Depositor or the NIMS Insurer, or if at any time the Trustee
shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor or the NIMS Insurer, may remove the Trustee and the Depositor may
appoint a successor Trustee, acceptable to the NIMS Insurer and to the Holders
of Certificates entitled to at least 51% of the Voting Rights, by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor Trustee. A copy of such instrument shall be
delivered to the Certificateholders and the Master Servicer by the Depositor.
The Holders of Certificates entitled to at least 51% of the Voting Rights,
with the consent of the NIMS Insurer, may at any time remove the Trustee and
appoint a successor Trustee by written instrument or instruments, in triplicate,
signed by the NIMS Insurer or such Holders, as applicable, or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Trustee so removed and
one complete set to the successor so appointed. A copy of such instrument shall
be delivered to the NIMS Insurer, the Certificateholders and the Master Servicer
by the Depositor.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.08.
Section 8.08 Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the 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
predecessor Trustee shall deliver to the successor Trustee all Mortgage Files
and related documents and statements, as well as all moneys, held by it
hereunder (other than any Mortgage Files at the time held by a Custodian, which
Custodian shall become the agent of any successor Trustee hereunder), and the
Depositor and the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 8.06 and the appointment of such successor
Trustee shall not result in a downgrading of the ratings of any of the Other NIM
Notes or of any Class of Certificates or of the shadow ratings of the Insured
NIM Notes (without giving effect to any insurance policy issued by the NIMS
Insurer) by any Rating Agency, as evidenced by a letter from each Rating Agency.
Upon acceptance of appointment by a successor Trustee as provided in this
Section, the Depositor shall mail notice of the succession of such Trustee
hereunder to all Holders of
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Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Depositor.
Section 8.09 Merger or Consolidation of Trustee.
Any corporation or association into which the Trustee may be merged or
converted or with which it may be consolidated or any corporation or association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or association succeeding to the business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or association shall be eligible under the provisions of Section
8.06, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of REMIC
1, or property securing the same 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
and the NIMS Insurer, to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of REMIC
1, and to vest in such Person or Persons, in such capacity, such title to REMIC
1, or any part thereof and, subject to the other provisions of this Section
8.10, 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 or the NIMS Insurer shall not have
approved such appointment within 15 days after the receipt by it of a request so
to do, or in case a Master Servicer Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof. If such appointment is
at the request of the Master Servicer then any expense of the Trustee shall be
deemed a Servicing Advance for all purpose of this Agreement, otherwise it will
be an expense of the Trustee and will be payable out of the Trustee's funds.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 8.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed by the Trustee (whether as Trustee hereunder or as
successor to the Master Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to REMIC 1, or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this
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Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trust conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Depositor and the Master Servicer,
appoint one or more Custodians to hold all or a portion of the Mortgage Files as
agent for the Trustee, by entering into a Custodial Agreement. The Trustee shall
initially serve as the Custodian and this Agreement shall serve as the Custodial
Agreement. The appointment of any Custodian may at any time be terminated and a
substitute Custodian appointed therefor upon the reasonable request of the
Master Servicer to the Trustee and the consent of the NIMS Insurer, the consent
to which shall not be unreasonably withheld. The Trustee shall pay any and all
fees and expenses of any Custodian (other than the Washington Mutual Custodian)
in accordance with each Custodial Agreement. Subject to Article VIII hereof, the
Trustee agrees to comply with the terms of each Custodial Agreement and to
enforce the terms and provisions thereof against the Custodian for the benefit
of the Certificateholders having an interest in any Mortgage File held by such
Custodian. Each Custodian shall be a depository institution or trust company
subject to supervision by federal or state authority, shall have combined
capital and surplus of at least $10,000,000 and shall be qualified to do
business in the jurisdiction in which it holds any Mortgage File. Each Custodial
Agreement may be amended only as provided in Section 11.01. In no event shall
the appointment of any Custodian pursuant to a Custodial Agreement diminish the
obligations of the Trustee hereunder. The Trustee shall at all times remain
responsible under the terms of this Agreement notwithstanding the fact that
certain duties have been assigned to the Custodian (other than the Washington
Mutual Custodian), but only to the extent the Trustee is responsible for its own
acts hereunder. Any documents delivered by the Depositor or the Master Servicer
to a Custodian other than the Trustee, if any, shall be deemed to have been
delivered to the Trustee for all purposes hereunder; and any documents held by
such a Custodian, if any, shall be deemed to be held by the Trustee for all
purposes hereunder. In order to comply with its duties under the U.S. Patriot
Act, the Custodian shall obtain and verify certain information and documentation
from the other parties to this Agreement, including, but not limited to, such
parties' name, address, and other identifying information.
Section 8.12 Appointment of Office or Agency.
The Trustee will appoint an office or agency in the City of New York where
the Certificates may be surrendered for registration of transfer or exchange,
and presented for final distribution, and where notices and demands to or upon
the Trustee in respect of the Certificates
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and this Agreement may be served. As of the Closing Date, the Trustee designates
its offices located at the office of Trustee's agent, located at DB Services
Tennessee, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000-0000, Attn: Transfer
Unit for such purpose.
Section 8.13 Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Master Servicer and the
Depositor, as of the Closing Date, that:
(i) it is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
(ii) the execution and delivery of this Agreement, and the
performance and compliance with the terms of this Agreement, will not
violate its charter or bylaws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it
or any of its assets.
(iii) it has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) this Agreement, assuming due authorization, execution and
delivery by the Master Servicer and the Depositor, constitutes its
valid, legal and binding obligation, enforceable against it in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, receivership, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Purchase or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer and
the Trustee (other than the obligations of the Master Servicer to the Trustee
pursuant to Section 8.05 and of the Master Servicer to provide for and the
Trustee to make payments in respect of the REMIC 1 Regular Interests, REMIC 2
Regular Interests, REMIC 3 Regular Interests, REMIC 4 Regular Interests and the
Classes of Certificates as hereinafter set forth) shall terminate upon the
payment to the Certificateholders and the deposit of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid or deposited on the
Distribution Date coinciding with or following the earlier to occur of (i) the
purchase by the Terminator (as defined below) of all Mortgage Loans and each REO
Property remaining in REMIC 1 and (ii) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in
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REMIC 1; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof. The purchase by the
Terminator of all Mortgage Loans and each REO Property remaining in REMIC 1
shall be at a price (the "Termination Price") equal to (a) if the Terminator is
the Master Servicer, 100% of the aggregate Stated Principal Balance of all the
Mortgage Loans included in REMIC 1 and accrued interest on the Stated Principal
Balance of each such Mortgage Loan at the applicable Net Mortgage Rate in effect
from time to time from the Due Date as to which interest was last paid by the
related Mortgagor or by an advance by the Master Servicer to but not including
the first day of the month in which such purchase is to be effected, plus the
appraised value of each REO Property, if any, included in REMIC 1, such
appraisal to be conducted by an appraiser selected by the Terminator in its
reasonable discretion and (b) if the Terminator is the Holder of a majority of
the Percentage Interest in the Class C Certificates or the NIMS Insurer, the
greater of (A) the aggregate Purchase Price of all the Mortgage Loans included
in REMIC 1, plus the appraised value of each REO Property, if any, included in
REMIC 1, such appraisal to be conducted by an appraiser selected by the
Terminator in its reasonable discretion, and (B) the aggregate fair market value
of all of the assets of REMIC 1 (as determined by the Terminator, as of the
close of business on the third Business Day next preceding the date upon which
notice of any such termination is furnished to Certificateholders pursuant to
the third paragraph of this Section 9.01), and any additional amounts necessary
to pay all interest accrued on, as well as amounts necessary to pay in full the
principal balance of, the NIM Notes and any amounts necessary to reimburse the
NIMS Insurer for all amounts paid under the NIMs insurance policy and any other
amounts reimbursable or otherwise payable to the NIMS Insurer, in each case,
with interest thereon at the applicable rate set forth in the Indenture and to
the extent not previously reimbursed or paid.
(b) The Holder of a majority of the Percentage Interest in the Class C
Certificates (except if such Holder is the Seller or any of its Affiliates)
shall have the right, and if the Holder of a majority of the Percentage Interest
in the Class C Certificates does not exercise such right, the Master Servicer
shall have the right and, if the Master Servicer does not exercise such right,
the NIMS Insurer, shall have the right (the party exercising such right, the
"Terminator") to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC 1 pursuant to clause (i) of the preceding paragraph no later
than the Determination Date in the month immediately preceding the Distribution
Date on which the Certificates will be retired; provided, however, that the
Terminator may elect to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC 1 pursuant to clause (i) of the preceding paragraph only if
the aggregate Stated Principal Balance of the Mortgage Loans and each REO
Property remaining in the Trust Fund at the time of such election is equal to or
less than 10% of the Cut-off Date Principal Balance of the Closing Date Mortgage
Loans. Additionally, if the Terminator is the Master Servicer, the Terminator
may elect to purchase all of the Mortgage Loans and each REO Property in REMIC 1
pursuant to clause (i) of the preceding paragraph only if the Termination Price
(A) is equal to or less than the aggregate fair market value of all of the
assets of REMIC 1 (as determined by the Terminator, as of the close of business
on the third Business Day next preceding the date upon which notice of any such
termination is furnished to Certificateholders pursuant to Section 9.01(c)) and
(B) will result in distributions on the Certificates sufficient (together with
all amounts received under the Indenture other than on account of the
Certificates) to pay all interest accrued on, as well as amounts necessary to
pay in full the principal balance of, the NIM Notes and any amounts necessary to
reimburse the NIMS
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Insurer for all amounts paid under the NIMs insurance policy and any other
amounts reimbursable or otherwise payable to the NIMS Insurer, in each case,
with interest thereon at the applicable rate set forth in the Indenture and to
the extent not previously reimbursed or paid (unless the NIMS Insurer consents
to a lesser Termination Price). By acceptance of the Residual Certificates, the
Holders of the Residual Certificates agree for so long as any NIM Notes are
outstanding, in connection with any termination hereunder, to assign and
transfer any amounts in excess of par, and to the extent received in respect of
such termination, to pay any such amounts to the Holders of the Class C
Certificates.
(c) Notice of the liquidation of the REMIC 1 Regular Interests shall
be given promptly by the Trustee by letter to Certificateholders mailed (a) in
the event such notice is given in connection with the purchase of the Mortgage
Loans and each REO Property by the Terminator, not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of the final
distribution on the Certificates or (b) otherwise during the month of such final
distribution on or before the Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment in respect of the REMIC 1 Regular Interests and the related
Certificates will be made upon presentation and surrender of the related
Certificates at the office of the Trustee therein designated, (ii) the amount of
any such final payment, (iii) that no interest shall accrue in respect of the
REMIC 1 Regular Interests or the related Certificates from and after the Accrual
Period relating to the final Distribution Date therefor and (iv) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office of the Trustee designated in such notice for purposes of such surrender.
The Trustee shall remit to the Master Servicer from such funds deposited in the
Distribution Account (i) any amounts which the Master Servicer would be
permitted to withdraw and retain from the Collection Account pursuant to Section
3.11 and (ii) any other amounts otherwise payable by the Trustee to the Master
Servicer from amounts on deposit in the Distribution Account pursuant to the
terms of this Agreement, in each case prior to making any final distributions
pursuant to Section 9.01(d) below. Upon certification to the Trustee by a
Servicing Representative of the making of such final deposit, the Trustee shall
promptly release or cause to be released to the Terminator the Mortgage Files
for the remaining Mortgage Loans, and the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such transfer.
(d) Upon presentation of the Certificates by the Certificateholders on
the final Distribution Date, the Trustee shall distribute to each
Certificateholder so presenting and surrendering its Certificates the amount
otherwise distributable on such Distribution Date in accordance with Section
4.01 in respect of the Certificates so presented and surrendered. Any funds not
distributed to any Holder or Holders of Certificates being retired on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust by the
Trustee and credited to the account of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 9.01 shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second notice
to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee
shall, directly or through an agent, mail a final notice to remaining related
non-tendering Certificateholders
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concerning surrender of their Certificates. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in the trust funds. If within one year after
the final notice any such Certificates shall not have been surrendered for
cancellation, the Trustee shall pay to Credit Suisse First Boston LLC and WaMu
Capital Corp., equally, all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section 9.01.
Immediately following the deposit of funds in trust hereunder in
respect of the Certificates, the Trust Fund shall terminate.
Section 9.02 Additional Termination Requirements.
(a) In the event that the Terminator purchases all the Mortgage Loans
and each REO Property or the final payment on or other liquidation of the last
Mortgage Loan or REO Property remaining in REMIC 1 pursuant to Section 9.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements:
(i) The Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to each Trust REMIC's final
Tax Return pursuant to Treasury regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder with respect to each Trust
REMIC, as evidenced by an Opinion of Counsel delivered to the Trustee
and the Depositor obtained at the expense of the Terminator;
(ii) During such 90-day liquidation period, and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC 1 to the Terminator for
cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Residual Certificates
all cash on hand in the Trust Fund (other than cash retained to meet
claims), and the Trust Fund shall terminate at that time.
(b) At the expense of the Terminator, the Trustee shall prepare or
cause to be prepared the documentation required in connection with the adoption
of a plan of liquidation of each Trust REMIC pursuant to the Section 9.02(a).
(c) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Trustee to specify the 90-day liquidation period for each
Trust REMIC, which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The Trustee shall elect to treat each Trust REMIC as a REMIC under
the Code and, if necessary, under applicable state law. Each such election will
be made on Form 1066 or other appropriate federal tax or information return
(including Form 8811) or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued, copies of which forms and returns shall promptly be furnished by the
Trustee to the NIMS Insurer. For the purposes of the REMIC election in respect
of REMIC 1, the REMIC 1 Regular Interests shall be designated as the Regular
Interests in REMIC 1 and the Class R-1 Interest shall be designated as the
Residual Interest in REMIC 1. For the purposes of the REMIC election in respect
of REMIC 2, the REMIC 2 Regular Interests shall be designated as the Regular
Interests in REMIC 2 and the Class R-2 Interest shall be designated as the
Residual Interest in REMIC 2. The REMIC 3 Regular Interests shall be designated
as the Regular Interests in REMIC 3 and the Class R-3 Interest shall be
designated as the Residual Interest in REMIC 3. For the purposes of the REMIC
election in respect of REMIC 4, (i) the Regular Certificates (other than the
Class C Certificates, the Class Swap IO Certificates and the Class P
Certificates) and the REMIC 4 Regular Interests shall be designated as the
Regular Interests in REMIC 4 and (ii) the Class R-4 Interest shall be designated
as the Residual Interest in REMIC 4. For the purposes of the REMIC election in
respect of REMIC CX, the Class C Certificates shall be designated as the Regular
Interests in REMIC CX and the Class R-CX Interest shall be designated as the
Residual Interest in REMIC CX. For the purposes of the REMIC election in respect
of REMIC PX, the Class P Certificates shall be designated as the Regular
Interests in REMIC PX and the Class R-PX Interest shall be designated as the
Residual Interest in REMIC PX. For the purposes of the REMIC election in respect
of REMIC SwapX, the Class Swap IO Certificates shall be designated as the
Regular Interests in REMIC SwapX and the Class R-SwapX Interest shall be
designated as the Residual Interest in REMIC SwapX. The Trustee shall not permit
the creation of any "interests" in REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC CX,
REMIC SwapX or REMIC PX (within the meaning of Section 860G of the Code) other
than the REMIC 1 Regular Interests, the REMIC 2 Regular Interests, the REMIC 3
Regular Interests, the REMIC 4 Regular Interests and the interests represented
by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
Trust REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay, out of funds on deposit in the Distribution
Account, any and all expenses relating to any tax audit of the Trust Fund
(including, but not limited to, any professional fees or any administrative or
judicial proceedings with respect to any Trust REMIC that involve the Internal
Revenue Service or state tax authorities) unless such expenses, professional
fees or any administrative or judicial proceedings are incurred by reason of the
Trustee's willful misfeasance, bad faith or negligence. The Trustee, as agent
for each Trust REMIC's tax matters person, shall (i) act on behalf of the Trust
Fund in relation to any tax matter or controversy involving any Trust REMIC and
(ii) represent the Trust Fund in any administrative or judicial proceeding
relating to an examination or audit by any governmental
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taxing authority with respect thereto and will be entitled to reimbursement from
the Trust Fund for any expenses incurred by the Trustee in connection therewith
unless such administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority is incurred by reason of the
Trustee's willful misfeasance, bad faith or negligence. The holder of the
largest Percentage Interest of the Class R Certificates shall be designated, in
the manner provided under Treasury regulations Section 1.860F-4(d) and Treasury
regulations Section 301.6231(a)(7)-1, as the tax matters person of each Trust
REMIC created hereunder other than REMIC CX, REMIC SwapX and REMIC PX. The
holder of the largest Percentage Interest of the Class R-CX Certificates shall
be designated, in the manner provided under Treasury regulations Section
1.860F-4(d) and Treasury regulations Section 301.6231(a)(7)-1, as the tax
matters person of REMIC CX and REMIC SwapX. The holder of the largest Percentage
Interest of the Class R-PX Certificates shall be designated, in the manner
provided under Treasury regulations Section 1.860F-4(d) and Treasury regulations
Section 301.6231(a)(7)-1, as the tax matters person of REMIC PX. By its
acceptance thereof, each such holder hereby agrees to irrevocably appoint the
Trustee or an Affiliate as its agent to perform all of the duties of the tax
matters person of each respective REMIC.
(d) The Trustee shall prepare, sign and file in a timely manner, all
of the Tax Returns in respect of each REMIC created hereunder, copies of which
Tax Returns shall be promptly furnished to the NIMS Insurer. The expenses of
preparing and filing such returns shall be borne by the Trustee without any
right of reimbursement therefor. The Master Servicer shall provide on a timely
basis to the Trustee or its designee such information with respect to the assets
of the Trust Fund as is in its possession and reasonably required by the Trustee
to enable it to perform its respective obligations under this Article.
(e) The Trustee shall perform on behalf of each Trust REMIC all
reporting and other tax compliance duties that are the responsibility of such
REMIC under the Code, the REMIC Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, as required by the Code, the REMIC Provisions or such other
compliance guidance, the Trustee shall provide (i) to any Transferor of a
Residual Certificate (or other person designated in Section 860E(e)(3) of the
Code) and to the Internal Revenue Service such information as is necessary for
the computation of any tax relating to the transfer of a 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 (using the Prepayment Assumption as required) 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 Trust REMIC. The Master
Servicer shall provide on a timely basis to the Trustee such information with
respect to the assets of the Trust Fund, including, without limitation, the
Mortgage Loans, as is in its possession and reasonably required by the Trustee
to enable it to perform its obligations under this subsection. In addition, the
Depositor shall provide or cause to be provided to the Trustee, within ten (10)
days after the Closing Date, all information or data that the Trustee reasonably
determines to be relevant for tax purposes as to the valuations and issue prices
of the Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates. The Depositor shall also
provide such information or data to the NIMS Insurer.
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(f) The Trustee shall take such action and shall cause each Trust
REMIC created hereunder to take such action as shall be necessary to create or
maintain the status thereof as a REMIC under the REMIC Provisions (and the
Master Servicer shall assist the Trustee, to the extent reasonably requested by
the Trustee to do specific actions in order to assist in the maintenance of such
status). The Trustee shall not take any action, cause the Trust Fund to take any
action or fail to take (or fail to cause to be taken) any action that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of any Trust REMIC as a REMIC or (ii) result in the imposition of a
tax upon the Trust Fund (including but not limited to the tax on prohibited
transactions set forth in Section 860F(a) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless the Trustee and the NIMS Insurer have
received an Opinion of Counsel, addressed to the Trustee and the NIMS Insurer
(at the expense of the party seeking to take such action but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to any Trust REMIC, endanger such status or result in the
imposition of such a tax, nor shall the Master Servicer take or fail to take any
action (whether or not authorized hereunder) as to which the Trustee has advised
it in writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event could occur with respect to such action; provided that the
Master Servicer may conclusively rely on such Opinion of Counsel and shall incur
no liability for its action or failure to act in accordance with such Opinion of
Counsel. The Trustee shall deliver to the NIMS Insurer a copy of any such advice
or opinion. In addition, prior to taking any action with respect to any Trust
REMIC or the assets thereof, or causing any Trust REMIC to take any action,
which is not contemplated under the terms of this Agreement, the Master Servicer
will consult with the Trustee or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect to
a Trust REMIC, and the Master Servicer shall not take any such action or cause
any Trust REMIC to take any such action as to which the Trustee has advised it
in writing that an Adverse REMIC Event could occur; provided that the Master
Servicer may conclusively rely on such writing and shall incur no liability for
its action or failure to act in accordance with such writing. The Trustee may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement,
but in no event shall such cost be an expense of the Trustee. At all times as
may be required by the Code, the Trustee will ensure that substantially all of
the assets of REMIC 1 will consist of "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) If any tax is imposed on prohibited transactions of any Trust
REMIC created hereunder pursuant to Section 860F(a) of the Code, on the net
income from foreclosure property of any such REMIC pursuant to Section 860G(c)
of the Code, or on any contributions to any such REMIC after the Startup Day
therefor pursuant to Section 860G(d) of the Code, or if any other tax is imposed
by the Code or any applicable provisions of state or local tax laws, such tax
shall be charged (i) to the Trustee pursuant to Section 10.03 hereof, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article X, (ii) to the Master Servicer pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Article X,
or (iii) otherwise against amounts on deposit in the Distribution Account and
shall be paid by withdrawal therefrom.
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(h) On or before April 15 of each calendar year commencing after the
date of this Agreement, the Trustee shall deliver to the Master Servicer, the
NIMS Insurer and each Rating Agency a Certificate from a Responsible Officer of
the Trustee stating the Trustee's compliance with this Article X.
(i) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each Trust REMIC on a calendar year and on an
accrual basis.
(j) Following the Startup Day, the Trustee shall not accept any
contributions of assets to any Trust REMIC other than in connection with any
Qualified Substitute Mortgage Loan delivered in accordance with Section 2.03
unless it shall have received an Opinion of Counsel to the effect that the
inclusion of such assets in the Trust Fund will not cause any Trust REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding or
subject any Trust REMIC to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which any Trust REMIC will receive a fee or other compensation
for services or permit any Trust 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.
(l) The Trustee shall treat each of the Reserve Fund, the Supplemental
Interest Account and the Final Maturity Reserve Account as an outside reserve
fund within the meaning of Treasury Regulation 1.860G-2(h) that is owned by the
Holders of the Class C Certificates and that is not an asset of any REMIC. The
Trustee shall treat the beneficial owners of the Certificates (other than the
Class P Certificates, the Class C Certificates and the Residual Certificates) as
having entered into a notional principal contract with respect to the beneficial
owners of the Class C Certificates. Pursuant to each such notional principal
contract, all beneficial owners of the Certificates (other than the Class P
Certificates, the Class C Certificates and the Residual Certificates) shall be
treated as having agreed to pay, on each Distribution Date, to the beneficial
owners of the Class C Certificates an aggregate amount equal to the excess, if
any, of (i) the amount payable on such Distribution Date on the interest in
REMIC 4 corresponding to such Class of Certificates over (ii) the amount payable
on such Class of Certificates on such Distribution Date (such excess, a "Class C
Shortfall"). A Class C Shortfall payable from interest collections shall be
allocated pro rata among such Certificates based on the amount of interest
otherwise payable to such Certificates, and a Class C Shortfall payable from
principal collections shall be allocated to the most subordinate Class of
Certificates with an outstanding Certificate Principal Balance to the extent of
such balance. In addition, pursuant to such notional principal contract, the
beneficial owner of the Class C Certificates shall be treated as having agreed
to pay (a)(i) Net WAC Rate Carryover Amounts and (ii) on any Distribution Date
on or after September 2012 through the Distribution Date in August 2035, if
amounts are not paid into the Final Maturity Reserve Account (because either the
constant prepayment rate of the Mortgage Loans is above 5% on such Distribution
Date or the Final Maturity Reserve Funding Date has occurred), any amounts that
would have been paid to the Final Maturity Reserve if the constant prepayment
rate of the Mortgage Loans was below 5% or the Final Maturity Reserve Funding
Date had not occurred, to the extent such amounts are used to make payments on
such Certificates to the Holders of the Certificates (other than the Class P
Certificates, the Class C Certificates and the
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Residual Certificates) pursuant to the terms of this Agreement and (b) to the
holders of the Class III-A1 Certificates any Net Swap Payments payable to such
Holders pursuant to the terms of this Agreement. Any payments on the
Certificates in light of the foregoing shall not be payments with respect to a
"regular interest" in a REMIC within the meaning of Code Section 860G(a)(1).
However, any payment from the Certificates of a Class C Shortfall shall be
treated for tax purposes as having been received by the beneficial owners of
such Certificates in respect of their interests in the REMIC 4 and as having
been paid by such beneficial owners to the Supplemental Interest Account
pursuant to the notional principal contract. Thus, each Certificate (other than
the Class P Certificates, the Class C Certificates and the Residual
Certificates) shall be treated as representing ownership of not only regular
interests in REMIC 4, but also ownership of an interest in (and obligations with
respect to) a notional principal contract. For purposes of determining the issue
price of the regular interests in REMIC 4, the Trustee shall assume that the
notional principal contract has a value of $10,000 as of the Closing Date in
favor of the Certificates (other than the Class C Certificates, the Class P
Certificates and the Residual Certificates) and shall allocate such value
proportionately to each such Class of Certificates based on such Class's initial
Certificate Principal Balance.
Section 10.02 Prohibited Transactions and Activities.
None of the Depositor, the Master Servicer or the Trustee shall sell,
dispose of or substitute for any of the Mortgage Loans (except in connection
with (i) the foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by deed in lieu of
foreclosure, (ii) the bankruptcy of REMIC 1, (iii) the termination of REMIC 1
pursuant to Article IX of this Agreement, (iv) a substitution pursuant to
Article II of this Agreement or (v) a purchase of Mortgage Loans pursuant to
Article II or III of this Agreement), nor acquire any assets for any Trust REMIC
(other than REO Property acquired in respect of a defaulted Mortgage Loan), nor
sell or dispose of any investments in the Collection Account or the Distribution
Account for gain, nor accept any contributions to any Trust REMIC after the
Closing Date (other than a Qualified Substitute Mortgage Loan delivered in
accordance with Section 2.03), unless it and the NIMS Insurer have received an
Opinion of Counsel, addressed to the Trustee and the NIMS Insurer (at the
expense of the party seeking to cause such sale, disposition, substitution,
acquisition or contribution but in no event at the expense of the Trustee) that
such sale, disposition, substitution, acquisition or contribution will not (a)
affect adversely the status of any Trust REMIC as a REMIC or (b) cause any Trust
REMIC to be subject to a tax on "prohibited transactions" or "contributions"
pursuant to the REMIC Provisions.
Section 10.03 Trustee, Master Servicer and Depositor Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Depositor and
the Master Servicer for any taxes and costs including, without limitation, any
reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Depositor or the Master Servicer as a result of a breach of the Trustee's
covenants set forth in this Article X or any state, local or franchise taxes
imposed upon the Trust as a result of the location of the Trustee.
(b) The Master Servicer agrees to indemnify the Trust Fund, the
Depositor and the Trustee for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Depositor or the Trustee as a result of a
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breach of the Master Servicer's covenants set forth in Article III or this
Article X or any state, local or franchise taxes imposed upon the Trust as a
result of the location of the Master Servicer or any subservicer.
(c) The Depositor agrees to indemnify the Trust Fund, the Master
Servicer and the Trustee for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Master Servicer or the Trustee as a result of a breach of the Depositor's
covenants set forth in this Article X.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
This Agreement or any Custodial Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Trustee and, if applicable, the
Custodian, with the consent of the NIMS Insurer, and if necessary, with the
consent of the Swap Counterparty and/or the Cap Provider (as described below),
and without the consent of any of the Certificateholders, (i) to cure any
ambiguity or defect, (ii) to correct, modify or supplement any provisions herein
(including to give effect to the expectations of Certificateholders), or in any
Custodial Agreement, (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 the Trust Fund 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, the NIMS Insurer, the Depositor and the Master Servicer have
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 the Trust Fund as a REMIC or adversely affect in any material respect
the interest of any Certificateholder or (iv) to make any other provisions with
respect to matters or questions arising under this Agreement or in any Custodial
Agreement which shall not be inconsistent with the provisions of this Agreement
or such Custodial Agreement, provided that, in each case, such action shall not,
as evidenced by an Opinion of Counsel delivered to the parties hereto and the
NIMS Insurer, adversely affect in any material respect the interests of any
Certificateholder and, provided, further, that (A) such action will not affect
in any material respect the permitted activities of the Trust and (B) such
action will not increase in any material respect the degree of discretion which
the Master Servicer is allowed to exercise in servicing the Mortgage Loans. No
amendment shall be deemed to adversely affect in any material respect the
interests of any Certificateholder who shall have consented thereto, and no
Opinion of Counsel shall be required to address the effect of any such amendment
on any such consenting Certificateholder.
This Agreement or any Custodial Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Trustee and, if applicable, the
Custodian, with the consent of the NIMS Insurer, and if necessary, with the
consent of the Swap Counterparty and/or the Cap Provider (as described below),
and with the consent of the Holders of Certificates entitled to at least 66% of
the Voting Rights, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or any
Custodial Agreement or of
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modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner, other than as described in
(i), without the consent of the Holders of Certificates of such Class evidencing
at least 66% of the Voting Rights allocated to such Class, or (iii) modify the
consents required by the immediately preceding clauses (i) and (ii) without the
consent of the Holders of all Certificates then outstanding. Notwithstanding any
other provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or the Master Servicer or any Affiliate thereof shall be entitled
to Voting Rights with respect to matters affecting such Certificates.
In addition to the provisions of this Section 11.01 and as long as the Swap
Counterparty remains the Swap Counterparty under the Swap Agreement or is owed
any amounts under this Agreement, the consent of the Swap Counterparty shall be
necessary for the adoption of any proposed amendment of this Agreement that, in
the Swap Counterparty's reasonable determination, materially affects the Swap
Counterparty's rights under this Agreement, including, but not limited to, the
right to receive any Trust Swap Payment or Swap Termination Payment due and
owing to it under this Agreement; provided that any such consent of the Swap
Counterparty shall not be unreasonably withheld.
Notwithstanding any contrary provision of this Agreement, the Trustee and
the NIMS Insurer shall be entitled to receive an Opinion of Counsel to the
effect that such amendment will not result in the imposition of any tax on any
Trust REMIC pursuant to the REMIC Provisions or cause any Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any such amendment the Trustee shall
furnish a copy of such amendment to each Certificateholder and the NIMS Insurer.
It shall not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
The cost of any Opinion of Counsel to be delivered pursuant to this Section
11.01 shall be borne by the Person seeking the related amendment, but in no
event shall such Opinion of Counsel be an expense of the Trustee.
The Trustee may, but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
Section 11.02 Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable
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jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer at the expense of the
Trust, but only upon direction of Certificateholders accompanied by an Opinion
of Counsel to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall together constitute but one and the
same instrument.
Section 11.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not (i) operate to
terminate this Agreement or the Trust, (ii) entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except as expressly provided for herein, no Certificateholder shall have
any right to vote or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 15 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding. It is understood
and intended, and expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03 each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
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Section 11.04 Governing Law; Jurisdiction.
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Section 11.05 Notices.
All directions, demands and notices hereunder shall be in writing and shall
be deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, by facsimile or by express delivery service, to (a)
in the case of the Master Servicer, Long Beach Mortgage Company, 0000 Xxxxx
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel
(telecopy number: (000) 000-0000), or such other address or telecopy number as
may hereafter be furnished to the other parties hereto in writing by the Master
Servicer, (b) in the case of the Trustee, Deutsche Bank National Trust Company,
0000 Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust
Administration Services LB05W2 (telecopy number (000) 000-0000) or such other
address or telecopy number as may hereafter be furnished to the other parties
hereto in writing by the Trustee, (c) in the case of the Depositor, Long Beach
Securities Corp., 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx
00000, Attention: General Counsel (telecopy number: (000) 000-0000), or such
other address or telecopy number as may be furnished to the other parties hereto
in writing by the Depositor, (d) in the case of the Swap Counterparty, as
provided in the Swap Agreement, and (e) in the case of the NIMS Insurer, the
NIMS Insurer's address or telecopy number as set forth in the Indenture, or such
other addresses or telecopy number as may be furnished to the other parties
hereto in writing by the NIMS Insurer. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register.
Notice of any Master Servicer default shall be given by telecopy and by
certified mail. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have duly been given when mailed,
whether or not the Certificateholder receives such notice. A copy of any notice
required to be telecopied hereunder shall also be mailed to the appropriate
party in the manner set forth above.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Notice to the Rating Agencies, the Cap Provider, the Swap
Counterparty and the NIMS Insurer.
The Trustee shall use its best efforts promptly to provide notice to the
Rating Agencies, the Cap Provider, the Swap Counterparty and the NIMS Insurer
with respect to each of the following of which it has actual knowledge:
1. Any amendment to this Agreement;
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2. The occurrence of any Master Servicer Event of Default that has not been
cured or waived;
3. The resignation or termination of the Master Servicer or the Trustee;
4. The repurchase or substitution of Mortgage Loans pursuant to or as
contemplated by Section 2.03;
5. The final payment to the Holders of any Class of Certificates;
6. Any change in the location of the Collection Account or the Distribution
Account;
7. The Trustee were it to succeed as Master Servicer, is unable to make
advances regarding delinquent Mortgage Loans; and
8. The filing of any claim under the Master Servicer's blanket bond and
errors and omissions insurance policy required by Section 3.14 or the
cancellation or material modification of coverage under any such instrument.
In addition, the Trustee shall promptly make available to each Rating
Agency, the Cap Provider and the Swap Counterparty copies of each Statement to
Certificateholders described in Section 4.03 hereof and the Master Servicer
shall promptly furnish to each Rating Agency copies of the following:
1. each annual statement as to compliance described in Section 3.20 hereof;
2. each annual independent public accountants' servicing report described
in Section 3.21 hereof.
Any such notice pursuant to this Section 11.07 shall be in writing and
shall be deemed to have been duly given if personally delivered or mailed by
first class mail, postage prepaid, or by express delivery service to (i) Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: MBS
Monitoring/Long Beach Mortgage Loan Trust 2005-WL2, (ii) Fitch, Inc., Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, (iii) Standard & Poor's Rating Services,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (iv) Credit Suisse First Boston
International, One Xxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxxx, Attention: Head of
Credit Risk Management and the NIMS Insurer at the address provided in Section
11.05.
In addition, each party hereto agrees that it will furnish or make
available to the NIMS Insurer a copy of any opinions, notices, reports,
schedules, certificates, statements, rating confirmation letters or other
information that are furnished hereunder to the Trustee or the
Certificateholders.
Section 11.08 Article and Section References.
All Article and Section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
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Section 11.09 Third-Party Beneficiaries.
(a) The NIMS Insurer shall be deemed a third-party beneficiary of this
Agreement, and shall be entitled to enforce such rights, in each case, as if it
were a party hereto. Notwithstanding anything to the contrary anywhere in this
Agreement, all rights of the NIMS Insurer hereunder (i) shall be suspended
whenever rights of the NIMS Insurer under the Indenture (other than the right to
consent to amendments to the Indenture) are suspended and (ii) except in the
case of any right to indemnification hereunder shall permanently terminate upon
the later to occur of (A) the payment in full of the Insured NIM Notes as
provided in the Indenture and (B) the payment in full to the NIMS Insurer of any
amounts owed to the NIMS Insurer as provided in the Indenture.
(b) The Swap Counterparty shall be deemed a third-party beneficiary of
this Agreement, and shall be entitled to enforce such rights, in each case, as
if it were a party hereto. Notwithstanding anything to the contrary anywhere in
this Agreement, all rights of the Swap Counterparty hereunder shall permanently
terminate upon the later to occur of (i) the expiration of the Swap Agreement,
and (ii) the payment in full to the Swap Counterparty, of any amounts owed to it
under the Swap Agreement.
Section 11.10 Grant of Security Interest.
It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and the other property specified in Section 2.01 by the Depositor
to the Trustee be, and be construed as, a sale and not a pledge to secure a debt
or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans or
other property conveyed to the Trustee pursuant to Section 2.01 are held to be
property of the Depositor, then, (a) it is the express intent of the parties
that such conveyance be deemed a pledge of the Mortgage Loans and all other
property conveyed to the Trustee pursuant to Section 2.01 by the Depositor to
the Trustee to secure a debt or other obligation of the Depositor and (b)(1)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect from
time to time in the State of New York; (2) the conveyance provided for in
Section 2.01 hereof shall be deemed to be a grant by the Depositor to the
Trustee 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 and all other property conveyed to the Trustee pursuant to
Section 2.01 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 Collection
Account and the Distribution Account, whether in the form of cash, instruments,
securities or other property; (3) the obligations secured by such security
agreement shall be deemed to be all of the Depositor's obligations under this
Agreement, including the obligation to provide to the Certificateholders the
benefits of this Agreement relating to the Mortgage Loans and the Trust Fund;
and (4) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Accordingly, the
Depositor hereby grants to the Trustee a security interest in the Mortgage Loans
and all other property described in clause (2) of the
209
preceding sentence, for the purpose of securing to the Trustee the performance
by the Depositor of the obligations described in clause (3) of the preceding
sentence. Notwithstanding the foregoing, the parties hereto intend the
conveyance pursuant to Section 2.01 to be a true, absolute and unconditional
sale of the Mortgage Loans and assets constituting the Trust Fund by the
Depositor to the Trustee.
210
IN WITNESS WHEREOF, the Depositor, the Master Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
LONG BEACH SECURITIES CORP.,
as Depositor
By:
------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Officer
LONG BEACH MORTGAGE COMPANY,
as Master Servicer
By:
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By:
------------------------------------
Name: Hang Xxx
Title: Authorized Signer
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On August ___, 2005 before me, _____________________________, personally
appeared XXXXX XXXX, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature _________________________________
(Seal)
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On August ___, 2005 before me, _____________________________, personally
appeared XXXXXXX XXXXXX, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature _________________________________
(Seal)
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On August ___, 2005 before me, _____________________________, personally
appeared XXXXXXX XXXXX, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature _________________________________
(Seal)
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On August ___, 2005 before me, _____________________________, personally
appeared HANG XXX, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature _________________________________
(Seal)
EXHIBIT A-1
CLASS I-A1 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : [____]%
Pass-Through Rate : Variable
CUSIP : [____]
Class : I-A1
Final Scheduled Distribution
Date : August, 2035
I-A1-1
Assumed Final Maturity Date : August, 2045
I-A1-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class I-A1
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class I-A1
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class I-A1
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class I-A1 Certificate (obtained by dividing the
Denomination of this Class I-A1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class I-A1 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class I-A1 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class I-A1
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 Class I-A1 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 Trustee.
I-A1-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class I-A1
Certificates referenced in the within-
mentioned Agreement
By__________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
I-A1-4
[Reverse of Class I-A1 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
I-A1-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
I-A1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
I-A1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
I-A1-8
EXHIBIT A-2
CLASS I-A2 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : [____]%
Pass-Through Rate : Variable
CUSIP : [____]
Class : I-A2
Final Scheduled Distribution
Date : August, 2035
I-A2-1
Assumed Final Maturity Date : August, 2045
I-A2-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class I-A2
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class I-A2
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class I-A2
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class I-A2 Certificate (obtained by dividing the
Denomination of this Class I-A2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class I-A2 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class I-A2 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class I-A2
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 Class I-A2 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 Trustee.
I-A2-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class I-A2
Certificates referenced in the within-
mentioned Agreement
By__________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
I-A2-4
[Reverse of Class I-A2 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
I-A2-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
I-A2-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
I-A2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
I-A2-8
EXHIBIT A-3
CLASS II-A1 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : [____]%
Pass-Through Rate : Variable
CUSIP : [____]
Class : II-A1
Final Scheduled Distribution
Date : August, 2035
II-A1-1
Assumed Final Maturity Date : August, 2045
II-A1-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class II-A1
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class II-A1
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class II-A1
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class II-A1 Certificate (obtained by dividing the
Denomination of this Class II-A1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class II-A1 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class II-A1 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class II-A1
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 Class II-A1 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 Trustee.
II-A1-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class II-A1 Certificates
referenced in the within-mentioned
Agreement
By________________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
II-A1-4
[Reverse of Class II-A1 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
II-A1-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
II-A1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
II-A1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
______________________________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
II-A1-8
EXHIBIT A-4
CLASS II-A2 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : II-A2
Final Scheduled Distribution
Date : August, 2035
II-A2-1
Assumed Final Maturity Date : August, 2045
II-A2-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class II-A2
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class II-A2
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class II-A2
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class II-A2 Certificate (obtained by dividing the
Denomination of this Class II-A2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class II-A2 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class II-A2 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class II-A2
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 Class II-A2 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 Trustee.
II-A2-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class II-A2 Certificates
referenced in the within-mentioned
Agreement
By_____________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
II-A2-4
[Reverse of Class II-A2 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
II-A2-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
II-A2-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
II-A2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
______________________________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
II-A2-8
EXHIBIT A-5
CLASS III-A1 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : III-A1
Final Scheduled Distribution
Date : August, 2035
III-A1-1
Assumed Final Maturity Date : August, 2045
III-A1-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class III-A1
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class
III-A1 Certificate at any time may be less than the Initial Certificate
Principal Balance set forth on the face hereof, as described herein. This Class
III-A1 Certificate does not evidence an obligation of, or an interest in, and is
not guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class III-A1 Certificate (obtained by dividing the
Denomination of this Class III-A1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class III-A1 Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class III-A1 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class III-A1
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 Class III-A1 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 Trustee.
III-A1-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class III-A1 Certificates
referenced in the within-mentioned
Agreement
By_____________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
III-A1-4
[Reverse of Class III-A1 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
III-A1-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
III-A1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
III-A1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
______________________________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
III-A1-8
EXHIBIT A-6
CLASS III-A1A CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : III-A1A
Final Scheduled Distribution
Date : August, 2035
III-A1A-1
Assumed Final Maturity Date : August, 2045
III-A1A-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class III-A1A
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class
III-A1A Certificate at any time may be less than the Initial Certificate
Principal Balance set forth on the face hereof, as described herein. This Class
III-A1A Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Master Servicer or the Trustee referred
to below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class III-A1A Certificate (obtained by dividing the
Denomination of this Class III-A1A Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class III-A1A Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class III-A1A Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class III-A1A
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 Class III-A1A 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 Trustee.
III-A1A-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class III-A1A Certificates
referenced in the within-mentioned
Agreement
By_______________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
III-A1A-4
[Reverse of Class III-A1A Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
III-A1A-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
III-A1A-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
III-A1A-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
______________________________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
III-A1A-8
EXHIBIT A-7
CLASS III-A2 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : III-A2
Final Scheduled Distribution
Date : August, 2035
III-A2-1
Assumed Final Maturity Date : August, 2045
III-A2-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class III-A2
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class
III-A2 Certificate at any time may be less than the Initial Certificate
Principal Balance set forth on the face hereof, as described herein. This Class
III-A2 Certificate does not evidence an obligation of, or an interest in, and is
not guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class III-A2 Certificate (obtained by dividing the
Denomination of this Class III-A2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class III-A2 Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class III-A2 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class III-A2
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 Class III-A2 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 Trustee.
III-A2-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class III-A2 Certificates
referenced in the within-mentioned
Agreement
By_____________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
III-A2-4
[Reverse of Class III-A2 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
III-A2-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
III-A2-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
III-A2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
______________________________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
III-A2-8
EXHIBIT A-8
CLASS III-A3 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : III-A3
Final Scheduled Distribution
Date : August, 2035
III-A3-1
Assumed Final Maturity Date : August, 2045
III-A3-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class III-A3
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class
III-A3 Certificate at any time may be less than the Initial Certificate
Principal Balance set forth on the face hereof, as described herein. This Class
III-A3 Certificate does not evidence an obligation of, or an interest in, and is
not guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class III-A3 Certificate (obtained by dividing the
Denomination of this Class III-A3 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class III-A3 Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class III-A3 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class III-A3
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 Class III-A3 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 Trustee.
III-A3-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class III-A3 Certificates
referenced in the within-mentioned
Agreement
By_____________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
III-A3-4
[Reverse of Class III-A3 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
III-A3-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
III-A3-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
III-A3-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
______________________________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
III-A3-8
EXHIBIT A-9
CLASS III-A4 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : III-A4
Final Scheduled Distribution
Date : August, 2035
III-A1-1
Assumed Final Maturity Date : August, 2045
III-A1-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class III-A4
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class
III-A4 Certificate at any time may be less than the Initial Certificate
Principal Balance set forth on the face hereof, as described herein. This Class
III-A4 Certificate does not evidence an obligation of, or an interest in, and is
not guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class III-A4 Certificate (obtained by dividing the
Denomination of this Class III-A4 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class III-A4 Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class III-A4 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class III-A4
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 Class III-A4 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 Trustee.
III-A1-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class III-A4 Certificates
referenced in the within-mentioned
Agreement
By___________________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
III-A1-4
[Reverse of Class III-A4 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
III-A1-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
III-A1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
III-A1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________
______________________________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
III-A1-8
EXHIBIT A-10
CLASS M-1 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES AND THE CLASS III-A4 CERTIFICATES TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
M-1-1
Class : M-1
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-1
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-1
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-1
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-1 Certificate (obtained by dividing the
Denomination of this Class M-1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-1 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-1 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-1
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 Class M-1 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 Trustee.
M-1-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class M-1 Certificates
referenced in the within-mentioned Agreement
By______________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-1-4
[Reverse of Class M-1 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-1-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
M-1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number ______________, or, if mailed by check, to ____________________.
_____________________________
Applicable statements should be mailed to ____________________________________
_____________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-1-8
EXHIBIT A-11
CLASS M-2 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES AND
THE CLASS M-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
M-2-1
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-2
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-2
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-2
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-2
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-2 Certificate (obtained by dividing the
Denomination of this Class M-2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-2 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-2 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-2
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 Class M-2 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 Trustee.
M-2-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August ___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By________________________________________________
This is one of the Class M-2 Certificates
referenced in the within-mentioned Agreement
By__________________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-2-4
[Reverse of Class M-2 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-2-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-2-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:________________________
______________________________________
Signature by or on behalf of assignor
M-2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number ______________, or, if mailed by check, to ____________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
_____________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-2-8
EXHIBIT A-12
CLASS M-3 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
M-3-1
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-3
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-3
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-3
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-3
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-3 Certificate (obtained by dividing the
Denomination of this Class M-3 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-3 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-3 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-3
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 Class M-3 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 Trustee.
M-3-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August___, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class M-3 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-3-4
[Reverse of Class M-3 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-3-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-3-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
M-3-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-3-8
EXHIBIT A-13
CLASS M-4 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
M-4-1
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-4
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-4
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-4
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-4
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-4 Certificate (obtained by dividing the
Denomination of this Class M-4 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-4 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-4 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-4
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 Class M-4 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 Trustee.
M-4-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class M-4 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-4-4
[Reverse of Class M-4 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-4-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-4-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
M-4-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-4-8
EXHIBIT A-14
CLASS M-5 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES
AND THE CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
M-5-1
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-5
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-5
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-5
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-5
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-5 Certificate (obtained by dividing the
Denomination of this Class M-5 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-5 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-5 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-5
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 Class M-5 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 Trustee.
M-5-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class M-5 Certificates
referenced in the within-mentioned Agreement
By____________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-5-4
[Reverse of Class M-5 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-5-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-5-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
M-5-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-5-8
EXHIBIT A-15
CLASS M-6 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
M-6-1
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-6
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-6
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-6
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-6
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-6 Certificate (obtained by dividing the
Denomination of this Class M-6 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-6 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-6 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-6
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 Class M-6 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 Trustee.
M-6-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class M-6 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-6-4
[Reverse of Class M-6 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-6-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-6-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
M-6-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-6-8
EXHIBIT A-16
CLASS M-7 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
M-7-1
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-7
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-7
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-7
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-7
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-7 Certificate (obtained by dividing the
Denomination of this Class M-7 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-7 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-7 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-7
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 Class M-7 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 Trustee.
M-7-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class M-7 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-7-4
[Reverse of Class M-7 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-7-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-7-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
M-7-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-7-8
EXHIBIT A-17
CLASS M-8 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6
CERTIFICATES AND THE CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
M-8-1
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-8
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-8
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-8
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-8
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-8 Certificate (obtained by dividing the
Denomination of this Class M-8 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-8 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-8 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-8
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 Class M-8 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 Trustee.
M-8-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class M-8 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-8-4
[Reverse of Class M-8 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-8-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-8-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated: _________________________
_____________________________________
Signature by or on behalf of assignor
M-8-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-8-8
EXHIBIT A-18
CLASS M-9 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6
CERTIFICATES, THE CLASS M-7 CERTIFICATES AND THE CLASS M-8 CERTIFICATES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
M-9-1
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-9
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 0000
X-0-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-9
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-9
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-9
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-9 Certificate (obtained by dividing the
Denomination of this Class M-9 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-9 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-9 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-9
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 Class M-9 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 Trustee.
M-9-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class M-9 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-9-4
[Reverse of Class M-9 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-9-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-9-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
M-9-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-9-8
EXHIBIT A-19
CLASS M-10 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6
CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES AND THE
CLASS M-9 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
M-10-1
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : M-10
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 2045
X-00-0
Xxxx Xxxxx Xxxxxxxx Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class M-10
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class M-10
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-10
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M-10 Certificate (obtained by dividing the
Denomination of this Class M-10 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-10 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class M-10 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class M-10
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 Class M-10 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 Trustee.
M-10-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class M-10 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
M-10-4
[Reverse of Class M-10 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
M-10-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
M-10-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
M-10-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
M-10-8
EXHIBIT A-20
CLASS B-1 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED 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.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6
CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS
M-9 CERTIFICATES AND THE CLASS M-10 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
B-1-1
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : B-1
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 2045
B-1-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class B-1
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class B-1
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class B-1
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class B-1 Certificate (obtained by dividing the
Denomination of this Class B-1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class B-1 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class B-1 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer, sale, pledge or other disposition of a Certificate of this
Class shall be made unless such disposition is exempt from the registration
requirements of the 1933 Act, and any applicable state securities laws or is
made in accordance with the 1933 Act and laws. In the event that a transfer of
this Certificate is to be made without registration under the 1933 Act (other
than in connection with the initial sale of thereof to the initial purchasers or
the initial issuance thereof), then the Trustee shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit J-1A to the Agreement and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit J-1B to the Agreement (which in the case of the
Book-Entry Certificates, the Certificateholder and the Certificateholder's
prospective transferee will be deemed to have represented such certification).
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee 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.
B-1-3
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class B-1
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 Class B-1 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 Trustee.
B-1-4
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class B-1 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
B-1-5
[Reverse of Class B-1 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
B-1-6
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
B-1-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
B-1-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
B-1-9
EXHIBIT A-21
CLASS B-2 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED 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.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6
CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS
M-9 CERTIFICATES, THE CLASS M-10 CERTIFICATES AND THE CLASS B-1 CERTIFICATES TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
B-2-1
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : B-2
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 2045
B-2-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class B-2
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class B-2
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class B-2
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class B-2 Certificate (obtained by dividing the
Denomination of this Class B-2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class B-2 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class B-2 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer, sale, pledge or other disposition of a Certificate of this
Class shall be made unless such disposition is exempt from the registration
requirements of the 1933 Act, and any applicable state securities laws or is
made in accordance with the 1933 Act and laws. In the event that a transfer of
this Certificate is to be made without registration under the 1933 Act (other
than in connection with the initial sale of thereof to the initial purchasers or
the initial issuance thereof), then the Trustee shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit J-1A to the Agreement and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit J-1B to the Agreement (which in the case of the
Book-Entry Certificates, the Certificateholder and the Certificateholder's
prospective transferee will be deemed to have represented such certification).
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee 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.
B-2-3
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class B-2
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 Class B-2 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 Trustee.
B-2-4
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class B-2 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
B-2-5
[Reverse of Class B-2 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
B-2-6
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
B-2-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated: __________________________
_____________________________________
Signature by or on behalf of assignor
B-2-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
B-2-9
EXHIBIT A-22
CLASS B-3 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED 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.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6
CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS
M-9 CERTIFICATES, THE CLASS M-10 CERTIFICATES, THE CLASS B-1 CERTIFICATES AND
THE CLASS B-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
B-2-1
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[_______]
Original Class Certificate
Principal Balance of this Class : $[_______]
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : [____]
Class : B-3
Final Scheduled Distribution
Date : August, 2035
Assumed Final Maturity Date : August, 2045
B-2-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class B-3
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class B-3
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class B-3
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class B-3 Certificate (obtained by dividing the
Denomination of this Class B-3 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class B-3 Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Class B-3 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No transfer, sale, pledge or other disposition of a Certificate of this
Class shall be made unless such disposition is exempt from the registration
requirements of the 1933 Act, and any applicable state securities laws or is
made in accordance with the 1933 Act and laws. In the event that a transfer of
this Certificate is to be made without registration under the 1933 Act (other
than in connection with the initial sale of thereof to the initial purchasers or
the initial issuance thereof), then the Trustee shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit J-1A to the Agreement and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit J-1B to the Agreement (which in the case of the
Book-Entry Certificates, the Certificateholder and the Certificateholder's
prospective transferee will be deemed to have represented such certification).
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee 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.
B-2-3
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class B-3
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 Class B-3 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 Trustee.
B-2-4
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class B-3 Certificates
referenced in the within-mentioned Agreement
By___________________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
B-2-5
[Reverse of Class B-3 Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
B-2-6
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
B-2-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:__________________________
_____________________________________
Signature by or on behalf of assignor
B-2-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
B-2-9
EXHIBIT A-23
CLASS C CERTIFICATES
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 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.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS I-A2
CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2 CERTIFICATES, THE
CLASS III-A1 CERTIFICATES, THE CLASS III-A1A CERTIFICATES, THE CLASS III-A2
CERTIFICATES, THE CLASS III-A3 CERTIFICATES, THE CLASS III-A4 CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6
CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS
M-9 CERTIFICATES, THE CLASS M-10 CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE
CLASS B-2 CERTIFICATES AND THE CLASS B-3 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Original Certificate Principal
Balance : $[_______]
Initial Notional Amount of this
Certificate ("Denomination") : $[_______]
Original Notional Amount of
this Class : $[_______]
C-1
Percentage : 100.00%
Pass-Through Rate : Variable
Class : C
C-2
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class C
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class C
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class C
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Credit Suisse First Boston LLC is the registered owner
of the Percentage Interest evidenced by this Class C Certificate (obtained by
dividing the Denomination of this Class C Certificate by the Original Notional
Amount) in certain distributions with respect to a Trust consisting primarily of
the Mortgage Loans deposited by Long Beach Securities Corp. (the "Depositor").
The Trust was created pursuant to a Pooling and Servicing Agreement dated as of
August 1, 2005 (the "Agreement") among the Depositor, Long Beach Mortgage
Company, as master servicer (the "Master Servicer") and Deutsche Bank National
Trust Company, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Class C Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class C
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
No transfer, sale, pledge or other disposition of a Certificate of this
Class shall be made unless such disposition is exempt from the registration
requirements of the 1933 Act, and any applicable state securities laws or is
made in accordance with the 1933 Act and laws. In the event that a transfer is
to be made in reliance upon an exemption from the Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee and the Depositor in writing the facts surrounding
the transfer. In the event that such a transfer is not to be made pursuant to
Rule 144A of the Act, there shall be delivered to the Trustee and the Depositor
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Act, which Opinion of Counsel shall not be obtained at the expense of
the Trustee, the Master Servicer or the Depositor; or there shall be delivered
to the Trustee and the Depositor a transferor certificate by the transferor and
an investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee 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.
C-3
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class C
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 Class C 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 Trustee.
C-4
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class C Certificates
referenced in the within-mentioned Agreement
By____________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
C-5
[Reverse of Class C Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
C-6
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the NIMS Insurer, if any,
and any agent of the Depositor, the Master Servicer, the Trustee or the NIMS
Insurer, if any, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee, the NIMS Insurer, if any, nor any such agent shall
be affected by any notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
C-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:___________________________
_____________________________________
Signature by or on behalf of assignor
C-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
C-9
EXHIBIT A-24
CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
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.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $100.00
Original Class Certificate
Principal Balance of this Class : $100.00
Percentage Interest : 100.00%
Class : P
P-1
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class P
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting of first lien, fixed rate and adjustable rate mortgage loans
(the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class P
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class P
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Credit Suisse First Boston LLC is the registered owner
of the Percentage Interest evidenced by this Class P Certificate (obtained by
dividing the Denomination of this Class P Certificate by the Original Class
Certificate Principal Balance) in certain distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Long Beach Securities
Corp. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Agreement") among the
Depositor, Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class P Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class P Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No transfer, sale, pledge or other disposition of a Certificate of this
Class shall be made unless such disposition is exempt from the registration
requirements of the 1933 Act, and any applicable state securities laws or is
made in accordance with the 1933 Act and laws. In the event that a transfer is
to be made in reliance upon an exemption from the Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee and the Depositor in writing the facts surrounding
the transfer. In the event that such a transfer is not to be made pursuant to
Rule 144A of the Act, there shall be delivered to the Trustee and the Depositor
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Act, which Opinion of Counsel shall not be obtained at the expense of
the Trustee, the Master Servicer or the Depositor; or there shall be delivered
to the Trustee and the Depositor a transferor certificate by the transferor and
an investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to,
P-2
indemnify the Trustee 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.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Reference is hereby made to the further provisions of this Class P
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 Class P 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 Trustee.
P-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class P Certificates
referenced in the within-mentioned Agreement
By_________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
P-4
[Reverse of Class P Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
P-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and any agent of the
Depositor, the Master Servicer, the Trustee or the NIMS Insurer, if any, may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Trustee, the NIMS Insurer, if any, nor any such agent shall be affected by any
notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
P-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:___________________________
_____________________________________
Signature by or on behalf of assignor
P-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
P-8
EXHIBIT A-25
CLASS R CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
"RESIDUAL INTERESTS" IN FOUR SEPARATE "REAL ESTATE MORTGAGE INVESTMENT
CONDUITS," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
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.
THIS CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A "DISQUALIFIED ORGANIZATION," AS SUCH TERM
IS DEFINED IN SECTION 860E OF THE CODE, SHALL BE MADE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Percentage Interest : 100.00%
Class : R
X-0
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class R
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting primarily of a pool of first lien, fixed rate and adjustable
rate mortgage loans (the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates.
This certifies that Credit Suisse First Boston LLC is the registered owner
of the Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by Long
Beach Securities Corp. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of August 1, 2005 (the "Agreement")
among the Depositor, Long Beach Mortgage Company, as master servicer (the
"Master Servicer") and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a principal balance or pass-through rate
and will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining assets
of the Trust will be made only upon presentment and surrender of this
Certificate at the office or agency designated by the Trustee.
No transfer, sale, pledge or other disposition of a Certificate of this
Class shall be made unless such disposition is exempt from the registration
requirements of the 1933 Act, and any applicable state securities laws or is
made in accordance with the 1933 Act and laws. In the event that a transfer is
to be made in reliance upon an exemption from the Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee and the Depositor in writing the facts surrounding
the transfer. In the event that such a transfer is not to be made pursuant to
Rule 144A of the Act, there shall be delivered to the Trustee and the Depositor
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Act, which Opinion of Counsel shall not be obtained at the expense of
the Trustee, the Master Servicer or the Depositor; or there shall be delivered
to the Trustee and the Depositor a transferor certificate by the transferor and
an investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to,
R-2
indemnify the Trustee 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.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Each Holder of this 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 Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this Certificate may be transferred without delivery to the Trustee of (a) a
transfer affidavit of the proposed transferee and (b) a transfer certificate of
the transferor, each of such documents to be in the form described in the
Agreement, (iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must agree
not to transfer an Ownership Interest in this 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 Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee. Pursuant to the Agreement, the Trustee will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws on
transfers of residual interests to Disqualified Organizations, if any
Disqualified Organization acquires an Ownership Interest on a Class R
Certificate in violation of the restrictions mentioned above.
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
officer of the Trustee.
R-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class R Certificates
referenced in the within-mentioned Agreement
By_________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
R-4
[Reverse of Class R Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
R-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and any agent of the
Depositor, the Master Servicer, the Trustee or the NIMS Insurer, if any, may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Trustee, the NIMS Insurer, if any, nor any such agent shall be affected by any
notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
By acceptance of the Class R Certificates the Holders of the Class R
Certificates agree that, in connection with any amounts distributable to the
Holders of the Class R Certificates pursuant to Section 4.01(d)(i)(yy) of the
Agreement, their rights to receive the amounts so distributable are assigned and
transferred and any such amounts shall be paid by the Trustee out of the Trust
Fund, and to the extent received by the Holders of the Class R Certificates they
shall pay any such amounts, to the Holders of the Class C Certificates. By
acceptance of the Class R Certificates, the Holders of the Class R Certificates
direct the Trustee to pay any amounts due to the Holders of the Class R
Certificates on the first Distribution Date to the Holders of the Class C
Certificates.
R-6
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
R-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:___________________________
_____________________________________
Signature by or on behalf of assignor
R-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
R-9
EXHIBIT A-26
CLASS R-CX CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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").
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.
THIS CLASS R-CX CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A "DISQUALIFIED ORGANIZATION," AS SUCH TERM
IS DEFINED IN SECTION 860E OF THE CODE, SHALL BE MADE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Percentage Interest : 100.00%
Class : R-CX
R-CX-1
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class R-CX
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting primarily of a pool of first lien, fixed rate and adjustable
rate mortgage loans (the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates.
This certifies that Credit Suisse First Boston LLC is the registered owner
of the Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by Long
Beach Securities Corp. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of August 1, 2005 (the "Agreement")
among the Depositor, Long Beach Mortgage Company, as master servicer (the
"Master Servicer") and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a principal balance or pass-through rate
and will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining assets
of the Trust will be made only upon presentment and surrender of this
Certificate at the office or agency designated by the Trustee.
No transfer, sale, pledge or other disposition of a Certificate of this
Class shall be made unless such disposition is exempt from the registration
requirements of the 1933 Act, and any applicable state securities laws or is
made in accordance with the 1933 Act and laws. In the event that a transfer is
to be made in reliance upon an exemption from the Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee and the Depositor in writing the facts surrounding
the transfer. In the event that such a transfer is not to be made pursuant to
Rule 144A of the Act, there shall be delivered to the Trustee and the Depositor
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Act, which Opinion of Counsel shall not be obtained at the expense of
the Trustee, the Master Servicer or the Depositor; or there shall be delivered
to the Trustee and the Depositor a transferor certificate by the transferor and
an investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to,
R-CX-2
indemnify the Trustee 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.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Each Holder of this 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 Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this Certificate may be transferred without delivery to the Trustee of (a) a
transfer affidavit of the proposed transferee and (b) a transfer certificate of
the transferor, each of such documents to be in the form described in the
Agreement, (iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must agree
not to transfer an Ownership Interest in this 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 Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee. Pursuant to the Agreement, the Trustee will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws on
transfers of residual interests to Disqualified Organizations, if any
Disqualified Organization acquires an Ownership Interest on a Class R-CX
Certificate in violation of the restrictions mentioned above.
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
officer of the Trustee.
R-CX-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class R-CX Certificates
referenced in the within-mentioned Agreement
By_________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
R-CX-4
[Reverse of Class R-CX Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
R-CX-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and any agent of the
Depositor, the Master Servicer, the Trustee or the NIMS Insurer, if any, may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Trustee, the NIMS Insurer, if any, nor any such agent shall be affected by any
notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
R-CX-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:___________________________
_____________________________________
Signature by or on behalf of assignor
R-CX-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
R-CX-8
EXHIBIT A-27
CLASS R-PX CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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").
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.
THIS CLASS R-PX CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A "DISQUALIFIED ORGANIZATION," AS SUCH TERM
IS DEFINED IN SECTION 860E OF THE CODE, SHALL BE MADE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : With respect to any Mortgage Loan, August 1,
2005
First Distribution Date : September 26, 2005
Percentage Interest : 100.00%
Class : R-PX
R-PX-1
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
Class R-PX
evidencing the Percentage Interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to the Trust
consisting primarily of a pool of first lien, fixed rate and adjustable
rate mortgage loans (the "Mortgage Loans")
LONG BEACH SECURITIES CORP., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates.
This certifies that Credit Suisse First Boston LLC is the registered owner
of the Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by Long
Beach Securities Corp. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of August 1, 2005 (the "Agreement")
among the Depositor, Long Beach Mortgage Company, as master servicer (the
"Master Servicer") and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a principal balance or pass-through rate
and will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining assets
of the Trust will be made only upon presentment and surrender of this
Certificate at the office or agency designated by the Trustee.
No transfer, sale, pledge or other disposition of a Certificate of this
Class shall be made unless such disposition is exempt from the registration
requirements of the 1933 Act, and any applicable state securities laws or is
made in accordance with the 1933 Act and laws. In the event that a transfer is
to be made in reliance upon an exemption from the Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee and the Depositor in writing the facts surrounding
the transfer. In the event that such a transfer is not to be made pursuant to
Rule 144A of the Act, there shall be delivered to the Trustee and the Depositor
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Act, which Opinion of Counsel shall not be obtained at the expense of
the Trustee, the Master Servicer or the Depositor; or there shall be delivered
to the Trustee and the Depositor a transferor certificate by the transferor and
an investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to,
R-PX-2
indemnify the Trustee 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.
No transfer of this Certificate to a Plan subject to ERISA or Section 4975
of the Code, any Person acting, directly or indirectly, on behalf of any such
Plan or any person using Plan Assets to acquire this Certificate shall be made
except in accordance with Section 5.02(c) of the Agreement.
Each Holder of this 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 Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this Certificate may be transferred without delivery to the Trustee of (a) a
transfer affidavit of the proposed transferee and (b) a transfer certificate of
the transferor, each of such documents to be in the form described in the
Agreement, (iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must agree
not to transfer an Ownership Interest in this 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 Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee. Pursuant to the Agreement, the Trustee will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws on
transfers of residual interests to Disqualified Organizations, if any
Disqualified Organization acquires an Ownership Interest on a Class R-PX
Certificate in violation of the restrictions mentioned above.
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
officer of the Trustee.
R-PX-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: August __, 2005
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as
Trustee
By_________________________________________________
This is one of the Class R-PX Certificates
referenced in the within-mentioned Agreement
By_________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
R-PX-4
[Reverse of Class R-PX Certificate]
Long Beach Mortgage Loan Trust 2005-WL2
Asset-Backed Certificates,
Series 2005-WL2
This Certificate is one of a duly authorized issue of Certificates
designated as Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2 (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
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 then the first
Business Day following such Distribution Date (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.
Distributions on this Certificate shall be made by check or money order
mailed to the address of the person entitled thereto as it appears on the
Certificate Register or by wire transfer or otherwise, as set forth in the
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Trustee and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified 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.
R-PX-5
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 Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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
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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and any agent of the
Depositor, the Master Servicer, the Trustee or the NIMS Insurer, if any, may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Trustee, the NIMS Insurer, if any, nor any such agent shall be affected by any
notice to the contrary.
On any Distribution Date following the date at which the remaining Stated
Principal Balance of the Mortgage Loans and REO Properties is equal to or less
than 10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Holders of the majority of the Percentage Interest of the Class C
Certificates, the Master Servicer or the NIMS Insurer, if any, may purchase, in
whole, from the Trust the Mortgage Loans in the manner and at a purchase price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the Distribution
Date for the Certificates in August, 2045.
Capitalized terms used herein that are defined in the Agreement shall have
the meanings ascribed to them in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
R-PX-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:___________________________
_____________________________________
Signature by or on behalf of assignor
R-PX-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________________________________________________________,
or, if mailed by check, to ___________________________________________________.
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
R-PX-8
EXHIBIT B-1
FORM OF GROUP I SENIOR CAP AGREEMENT
FACSIMILE COVER SHEET
To: Long Beach Mortgage Loan Trust 2005-WL2
Attention: Xxxxxxxx Xxxxx, CSFBi Marketer
Fax number: To be hand delivered by Xxxxxxxx Xxxxx
Date: 30 August 2005
Pages (including cover page): 7
Our Reference No: External ID: 53079408N3 / Risk ID: 447309949 / 965
Credit Suisse First Boston International has entered into a transaction
with you as attached. Please find attached a letter agreement (the
"Confirmation") which confirms the terms and conditions of the above
transaction.
If you agree with the terms specified therein, PLEASE ARRANGE FOR THE
CONFIRMATION TO BE SIGNED BY YOUR AUTHORISED SIGNATORIES and return a signed
copy to this office to the facsimile listed below.
FOR INTEREST RATE PRODUCTS: FOR EQUITY DERIVATIVES:
Telephone Numbers: (000) 000-0000 Telephone numbers: (000) 000-0000 / (212)
Facsimile number: (000) 000-0000 538-8297 / (000)000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx Facsimile number: (000) 000-0000
FOR CREDIT DERIVATIVES:
Telephone Numbers: (000) 000-0000
Facsimile number: (000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx
We are delighted to have entered into this transaction with you.
CONFIDENTIALITY NOTICE: This facsimile is intended only for the use of the
individual or entity to which it is addressed and may contain information which
is privileged and confidential. If the reader of this message is not the
intended recipient or an employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately by telephone and return the original message to us by mail. Thank
you.
B-1-1
30 August 2005
Long Beach Mortgage Loan Trust 2005-WL2
(I) EXTERNAL ID: 53079408N3
--------------------------------------------------------------------------------
Dear Sirs,
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Swap Transaction entered into between us on the
Trade Date specified below (the "Swap Transaction"). This Confirmation
constitutes a "Confirmation" as referred to in the Agreement specified below.
IN THIS CONFIRMATION "CSFBI" MEANS CREDIT SUISSE FIRST BOSTON INTERNATIONAL AND
"COUNTERPARTY" MEANS LONG BEACH MORTGAGE LOAN TRUST 2005-WL2.
1. The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation supplements, forms part of, and is subject to, the 1992
ISDA Master Agreement dated as of 23 August 2005 as amended and
supplemented from time to time (the "Agreement"), between you and us. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
CSFBi and Counterparty each represents to the other that it has entered
into this Swap Transaction in reliance upon such tax, accounting,
regulatory, legal, and financial advice as it deems necessary and not upon
any view expressed by the other.
Terms used herein and not defined herein, in the 2000 ISDA Definitions or
the Agreement shall have the meanings ascribed to such terms in the
Pooling and Servicing Agreement, dated as of August 1, 2005 (the "PSA"),
among Long Beach Securities Corp., as Depositor, Long Beach Mortgage
Company, as Master Servicer, and Deutsche Bank Trust Company, as Trustee.
2. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Transaction Type: Rate Cap Transaction
B-1-2
Notional Amount: Initially, USD 346,249,529, and
thereafter the lesser of (i) the
amount set forth in the Additional
Terms opposite the related Calculation
Period and (ii) the aggregate
outstanding Certificate Principal
Balance of the Group I Senior
Certificates immediately prior to the
Distribution Date corresponding to the
related Calculation Period
Trade Date: 24 August 2005
Effective Date: 30 August 2005
Termination Date: 25 November 2008, subject to
adjustment in accordance with the
Modified Following Business Day
Convention
Fixed Amounts:
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date: 30 August 2005, inclusive, subject to
adjustment in accordance with the
Following Business Day Convention
Fixed Amount: USD 36,000
CSFBi Floating Amounts:
CSFBi Floating Rate
Payment Dates: The 25th of each month, commencing on
25 October 2005, and ending on the
Termination Date, inclusive, subject
to adjustment in accordance with the
Modified Following Business Day
Convention
CSFBi Floating Rate Payer
initial Calculation Period From and including 25 September 2005
up to but excluding the Payment Date
scheduled to occur on 25 October 2005.
CSFBi cap rate: See Additional Terms
Floating Rate Option: XXX-XXXXX-XXX
X-0-0
Designated Maturity: 1 month
Spread: None
Floating Rate: As defined in the 2000 ISDA
Definitions, provided that, if the
Floating Rate for any Calculation
Period would exceed 10.23 per cent.,
the Floating Rate for such Calculation
Period shall be deemed to be 10.23
percent.
Floating Rate
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Business Days: New York
Calculation Agent: CSFBi
Account Details:
Payments to CSFBi: As advised separately in writing
Payments to Counterparty: As advised separately in writing
Credit Suisse First Boston International is authorised and regulated by the
Financial Services Authority and has entered into this transaction as principal.
The time at which the above transaction was executed will be notified to
Counterparty on request.
B-1-4
ADDITIONAL TERMS
--------------------------------------------------------------------------------
CALCULATION PERIOD UP TO NOTIONAL AMOUNT: CSFBI CAP
BUT EXCLUDING THE CSFBI RATE:
FLOATING RATE PAYMENT
DATE SCHEDULED TO OCCUR
ON:
--------------------------------------------------------------------------------
25 October 2005 USD 346,249,529 6.75%
--------------------------------------------------------------------------------
25 November 2005 USD 340,911,708 6.52%
--------------------------------------------------------------------------------
25 December 2005 USD 334,741,471 6.75%
--------------------------------------------------------------------------------
25 January 2006 USD 327,753,440 6.53%
--------------------------------------------------------------------------------
25 February 2006 USD 319,967,179 6.53%
--------------------------------------------------------------------------------
25 March 2006 USD 311,406,544 7.26%
--------------------------------------------------------------------------------
25 April 2006 USD 302,100,480 6.53%
--------------------------------------------------------------------------------
25 May 2006 USD 292,082,635 6.76%
--------------------------------------------------------------------------------
25 June 2006 USD 281,463,608 6.53%
--------------------------------------------------------------------------------
25 July 2006 USD 271,123,531 6.77%
--------------------------------------------------------------------------------
25 August 2006 USD 261,061,813 6.54%
--------------------------------------------------------------------------------
25 September 2006 USD 251,270,819 6.54%
--------------------------------------------------------------------------------
25 October 2006 USD 241,743,272 6.77%
--------------------------------------------------------------------------------
25 November 2006 USD 232,472,088 6.54%
--------------------------------------------------------------------------------
25 December 2006 USD 223,450,373 6.77%
--------------------------------------------------------------------------------
25 January 2007 USD 214,671,419 6.55%
--------------------------------------------------------------------------------
25 February 2007 USD 206,128,699 6.55%
--------------------------------------------------------------------------------
25 March 2007 USD 197,815,862 7.28%
--------------------------------------------------------------------------------
25 April 2007 USD 189,726,725 6.55%
--------------------------------------------------------------------------------
25 May 2007 USD 181,855,274 6.78%
--------------------------------------------------------------------------------
25 June 2007 USD 173,418,118 7.98%
--------------------------------------------------------------------------------
25 July 2007 USD 157,270,702 8.25%
--------------------------------------------------------------------------------
25 August 2007 USD 142,060,791 7.97%
--------------------------------------------------------------------------------
25 September 2007 USD 127,800,999 7.96%
--------------------------------------------------------------------------------
25 October 2007 USD 114,893,895 8.22%
--------------------------------------------------------------------------------
B-1-5
--------------------------------------------------------------------------------
CALCULATION PERIOD UP TO NOTIONAL AMOUNT: CSFBI CAP
BUT EXCLUDING THE CSFBI RATE:
FLOATING RATE PAYMENT
DATE SCHEDULED TO OCCUR
ON:
--------------------------------------------------------------------------------
25 November 2007 USD 107,549,299 7.94%
--------------------------------------------------------------------------------
25 December 2007 USD 100,501,149 8.95%
--------------------------------------------------------------------------------
25 January 2008 USD 93,694,759 8.65%
--------------------------------------------------------------------------------
25 February 2008 USD 87,121,182 8.65%
--------------------------------------------------------------------------------
25 March 2008 USD 80,772,353 9.26%
--------------------------------------------------------------------------------
25 April 2008 USD 74,640,490 8.66%
--------------------------------------------------------------------------------
25 May 2008 USD 68,718,082 9.15%
--------------------------------------------------------------------------------
25 June 2008 USD 63,000,073 9.56%
--------------------------------------------------------------------------------
25 July 2008 USD 57,477,528 9.89%
--------------------------------------------------------------------------------
25 August 2008 USD 52,143,305 9.56%
--------------------------------------------------------------------------------
25 September 2008 USD 46,990,861 9.55%
--------------------------------------------------------------------------------
25 October 2008 USD 46,990,861 9.87%
--------------------------------------------------------------------------------
25 November 2008 USD 46,990,861 9.60%
--------------------------------------------------------------------------------
B-1-6
SCHEDULE
to the
MASTER AGREEMENT
dated as of August 23, 2005
between
CREDIT SUISSE FIRST BOSTON AND LONG BEACH MORTGAGE LOAN TRUST 2005-
INTERNATIONAL WL2
("PARTY A") ("PARTY B")
PART 1
TERMINATION PROVISIONS
In this Agreement:-
(A) SPECIFIED ENTITY. "Specified Entity" shall have no meaning in relation to
Party A or Party B.
(B) SPECIFIED TRANSACTION. "Specified Transaction" shall have the meaning
specified in Section 14.
(C) CERTAIN EVENTS OF DEFAULT. The following Events of Default will apply to
the parties as specified below, and the definition of "Event of Default"
in Section 14 is deemed to be modified accordingly:
Section 5(a)(i) (Failure To Pay or Deliver) will apply to Party A and will
apply to Party B.
Section 5(a)(ii) (Breach of Agreement) will not apply to Party A or to
Party B.
Section 5(a)(iii) (Credit Support Default) will not apply to Party A or
Party B provided that Section 5(a)(iii) will apply to Party B to the
extent that, and for so long as, Party A has posted collateral under the
Credit Support Annex attached hereto.
Section 5(a)(iv) (Misrepresentation) will not apply to Party A or to Party
B.
Section 5(a)(v) (Default Under Specified Transaction) will not apply to
Party A or Party B.
Section 5(a)(vi) (Cross Default) will not apply to Party A or to Party B.
Section 5(a)(vii) (Bankruptcy) will apply to Party A and will apply to
Party B, provided that Section 5(a)(viii)(2) will not apply to Party B.
Section 5(a)(viii) (Merger Without Assumption) will apply to Party A and
will not apply to Party B.
B-1-7
(D) TERMINATION EVENTS. The "Illegality" provision of Section 5(b)(i), the
"Tax Event" provision of Section 5(b)(ii), the "Tax Event Upon Merger"
provision of Section 5(b)(iii) will apply to Party A and to Party B and
the "Credit Event Upon Merger" provision of Section 5(b)(iv) will apply to
Party A. Notwithstanding the terms of Sections 5 and 6, if Party B has
satisfied its payment obligations under Section 2(a)(i) of this Agreement,
then, unless Party A is required pursuant to appropriate proceedings to
return to Party B or otherwise returns to Party B upon demand of Party B
any portion of such payment or posts collateral to Party B pursuant to the
Credit Support Annex attached hereto, (a) the occurrence of an event
described in Section 5(a) of this Agreement with respect to Party B shall
not constitute an Event of Default or Potential Event of Default with
respect to Party B as the Defaulting Party and (b) Party A shall only be
entitled to designate an Early Termination Event pursuant to Section 6 of
this Agreement as a result of a Termination Event set forth in either
Section 5(b)(i) or Section 5(b)(ii) of this Agreement with respect to
Party A as the affected Party or Section 5(b)(iii) of this Agreement with
respect to Party A as the Burdened Party. For the purposes of each
Transaction which forms part of this Agreement and for as long as Party A
has posted no collateral under the Credit Support Annex attached hereto,
Party B's only obligation under Section 2(a)(i) of this Agreement is to
pay the Fixed Amount on the Fixed Rate Payer Payment Date.
(E) AUTOMATIC EARLY TERMINATION. The "Automatic Early Termination" provision
of Section 6(a) will not apply to Party A or Party B.
(F) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e), the Second
Method and Market Quotation will apply.
(G) TERMINATION CURRENCY. "Termination Currency" means United States Dollars.
(H) ADDITIONAL TERMINATION EVENT. The following shall be an Additional
Termination Event with respect to Party B as the sole Affected Party:-
COUNTERPARTY RATING AGENCY DOWNGRADE. If the Counterparty no longer has a
long-term credit rating of at least "A" (or its equivalent) from at least
one of the Rating Agencies (a "COUNTERPARTY RATING AGENCY DOWNGRADE"),
provided that neither of the following events shall occur: Party A shall,
no later than the 30th day following the Counterparty Rating Agency
Downgrade, either (1) obtain a substitute Counterparty that is a bank or
other financial institution that has a rating that is in one of the three
highest long-term credit rating categories from at least one of the Rating
Agencies rating the Certificates, (2) obtain a guaranty of or a contingent
agreement of another person with a long-term credit rating of at least A
(or its equivalent) from at least one of the Rating Agencies to honor
Party A's obligations hereunder, (3) post collateral under the Credit
Support Annex attached hereto and made a part hereof, or (4) establish any
other arrangement satisfactory to the Rating Agencies to restore the
ratings of the Offered Certificates. As used herein: (i) "MOODY'S" means
Xxxxx'x Investors Service, Inc., or any successor nationally recognized
statistical rating organization, (ii) "S&P" means Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or any
successor nationally recognized statistical rating organization, (iii)
"FITCH" means Fitch Ratings, or any successor nationally recognized
statistical rating organization, and (iv) "RATING AGENCY" means Xxxxx'x,
S&P, or Fitch.
B-1-8
PART 2
TAX REPRESENTATIONS
(A) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e), Party A and
Party B each makes the following representation:-
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e)) to be
made by it to the other party under this Agreement. In making this
representation, it may rely on:-
(i) the accuracy of any representation made by the other party pursuant
to Section 3(f);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i)
or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d);
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii), and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(B) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f),
(i) Party A makes the following representation to Party B:
(A) Party A is entering into each Transaction in the ordinary course
of its trade as, and is, a recognized UK bank as defined in
Section 840A of the UK Income and Corporation Taxes Act of 1988.
(B) Party A has been approved as a Withholding Foreign Partnership
by the US Internal Revenue Service.
(C) Party A's Withholding Foreign Partnership Employer
Identification Number is 00-0000000.
(D) Party A is a partnership that agrees to comply with any
withholding obligation under Section 1446 of the Internal
Revenue Code.
(ii) Party B makes no Payee Tax Representations.
B-1-9
PART 3
AGREEMENT TO DELIVER DOCUMENTS
Each party agrees to deliver the following documents as applicable:-
(a) For the purpose of Section 4(a)(i), tax forms, documents or certificates
to be delivered are:-
None
(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:-
PARTY REQUIRED FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY
TO DELIVER CERTIFICATE DELIVERED SECTION 3(D)
DOCUMENT REPRESENTATION
Party A and Evidence reasonably Upon execution this Yes
Party B satisfactory to the Agreement and, if
other party as to the requested, upon
names, true signatures execution of any
and authority of the Confirmation
officers or officials
signing this Agreement
or any Confirmation on
its behalf
Party A Certified copies of the At or promptly Yes
charter and by-laws of following execution of
such party (or a this Agreement.
resolution containing
excerpts of such
party's by-laws), and
of the resolutions of
the board of directors
of such party, or other
applicable document,
B-1-10
authorizing the
execution and delivery
of this Agreement and
each Confirmation by
such party
Party A A copy of the annual Upon request, as soon Yes
report for such party as publicly available
containing audited or
certified financial
statements for the most
recently ended
financial year
Party A and An opinion of counsel Upon execution of this No
Party B to such party Agreement
reasonably satisfactory
in form and substance
to the other party
covering the
enforceability of this
Agreement against such
other party.
Party B All opinions of counsel Upon execution of this No
to Party B and counsel Agreement
to the Servicer,
delivered as of the
Closing Date
Party B Executed copies of the Upon request. No
Pooling Agreement and
such other documents as
requested by Party A.
B-1-11
Party B Such other information Upon request No
in connection with the
Certificates or the
Pooling Agreement in
the possession of Party
B as Party A may
reasonably request.
B-1-12
PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):-
(i) (1) Address for notices or communications to Party A (other than by
facsimile):-
Address: One Cabot Square Attention: (1) Head of Credit Risk Management;
Xxxxxx X00 0XX (2) Managing Director -
England Operations Department;
(3) Managing Director - Legal
Department
Telex No.:264521 Answerback: CSFBI G
(For all purposes.)
(2) For the purpose of facsimile notices or
communications under this Agreement (other than a notice or
communication under Section 5 or 6):-
Facsimile No.: 020 7888 2686
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: 020 7888 2028
Designated responsible employee for the purposes of Section 12(a)(iii):
Senior Legal Secretary
(ii) Address for notices or communications to Party B:-
Address: c/o Deutsche Bank National Attention: LB05W2
Trust Company,
0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000-
4934
Telephone No.: 000-000-0000
B-1-13
(For all purposes.)
With copies to:-
Address: Credit Suisse First Boston LLC Attention: Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000 Facsimile No.: (000) 000-0000
(b) PROCESS AGENT. For the purpose of Section 13(c):-
Party A appoints as its Process Agent:- Credit Suisse First Boston LLC,
Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (Attention:- General Counsel,
Legal and Compliance Department)
Party B appoints as its Process Agent:- Not Applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c):-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document: Not
applicable.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
choice of law doctrine.
(i) NETTING OF PAYMENTS. Section 2(c)(ii) of this Agreement will not apply to
the Transactions.
B-1-14
(j) AFFILIATE. Affiliate will have the meaning specified in Section 14,
provided that Party B shall be deemed to have no Affiliates.
PART 5
OTHER PROVISIONS
(a) DEFINITIONS.
Capitalized terms used in this Agreement that are not otherwise defined
herein and are defined in the Pooling Agreement shall have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement
dated as of August 1, 2005 between Long Beach Securities Corp. as
Depositor, Long Beach Mortgage Company as Seller and Master Servicer and
Deutsche Bank National Trust Company, as Trustee for the Trust (the
"TRUSTEE") as amended from time to time (the "POOLING AGREEMENT"). In the
event of an inconsistency between the terms in the Pooling Agreement and
this Agreement, this Agreement shall govern.
(b) INDEPENDENT RELIANCE. The parties agree to amend Section 3 of this
Agreement by the addition of the following provision at the end thereof
and marked as subsection (g).
"(g) INDEPENDENT RELIANCE. Party A is entering into this Agreement and
will enter into each Transaction in reliance upon such tax,
accounting, regulatory, legal, and financial advice as it deems
necessary and not upon any view expressed by the other party. Party
B is entering into this Agreement and will enter into each
Transaction in reliance upon the direction of the Depositor and not
upon any view expressed by the other party."
(c) CHANGE OF ACCOUNT. Section 2(b) of this Agreement is hereby amended by the
addition of the following after the word "delivery" in the first line
thereof:-
"to another account in the same legal and tax jurisdiction as the original
account"
(d) RECORDING OF CONVERSATIONS. Each party to this Agreement acknowledges and
agrees to the tape recording of conversations between the parties to this
Agreement whether by one or other or both of the parties.
(e) WAIVER OF RIGHT TO TRIAL BY JURY. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this Agreement or
any Credit Support Document. Each party (i) certifies that no
representative, agent or attorney of the other party or any Credit Support
Provider has represented, expressly or otherwise, that such other party
would not, in the event of such a suit action or proceeding, seek to
enforce the foregoing waiver and (ii) acknowledges that it and the other
party have been induced to enter into this Agreement and provide for any
Credit Support Document, as applicable by, among other things, the mutual
waivers and certifications in this Section.
B-1-15
(g) NON-PETITION. Without impairing any right afforded to it under the Pooling
Agreement as a third-party beneficiary, Party A agrees that it shall not
institute against, or join any other person in instituting against, Party
B any bankruptcy, reorganization, arrangement, insolvency, moratorium or
liquidation proceedings or other proceedings under U.S. Federal or state
bankruptcy or similar laws (of any other jurisdiction) until at least one
year and one day (or, if longer, the applicable preference period) after
the payment in full of all of the Certificates issued under the Pooling
Agreement.
(h) TRANSFER. Section 7 is hereby amended to read in its entirety as follows:
Except as stated under Section 6(b)(ii), and except for the assignment by
way of security under the Pooling Agreement, neither Party A nor Party B
is permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or
interests under this Agreement or any Transaction without the prior
written consent of the other party; provided, however, that (i) Party A
may make such a transfer of this Agreement pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of substantially
all of its assets to, another entity, or an incorporation, reincorporation
or reconstitution, and (ii) Party A may transfer this Agreement to any
Person, including, without limitation, another of Party A's offices,
branches or affiliates (any such Person, office, branch or affiliate, a
"Transferee") on at least five Business Days' prior written notice to
Party B; provided that, with respect to clause (ii), (A) as of the date of
such transfer the Transferee will not be required to withhold or deduct on
account of a Tax from any payments under this Agreement unless the
Transferee will be required to make payments of additional amounts
pursuant to Section 2(d)(i)(4) of this Agreement in respect of such Tax;
(B) a Termination Event or Event of Default does not occur under this
Agreement as a result of such transfer; (C) such notice is accompanied by
a written instrument pursuant to which the Transferee acquires and assumes
the rights and obligations of Party A so transferred; and (D) Party A will
be responsible for any costs or expenses incurred in connection with such
transfer. Party B will execute such documentation as is reasonably deemed
necessary by Party A for the effectuation of any such transfer.
Except as specified otherwise in the documentation evidencing a transfer,
a transfer of all the obligations of Party A made in compliance with this
Section 7 will constitute an acceptance and assumption of such obligations
(and any related interests so transferred) by the Transferee, a novation
of the transferee in place of Party A with respect to such obligations
(and any related interests so transferred), and a release and discharge by
Party B of Party A from, and an agreement by Party B not to make any claim
for payment, liability, or otherwise against Party A with respect to, such
obligations from and after the effective date of the transfer.
(i) NOTICE OF CERTAIN EVENTS OR CIRCUMSTANCES. Each party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or both
would constitute) an Event of Default or Termination Event with respect to
such party, promptly to give the other party notice of such event or
condition (or, in lieu of giving notice of such event or condition in the
case of an event or condition that with the giving of notice or passage of
time or both would constitute an
B-1-16
Event of Default or Termination Event with respect to the party, to cause
such event or condition to cease to exist before becoming an Event of
Default or Termination Event); provided that failure to provide notice of
such event or condition pursuant to this Part 5(j) shall not constitute an
Event of Default or a Termination Event.
(j) REGARDING PARTY A. Party B acknowledges and agrees that Party A has had
and will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of assets
of the Party B; (ii) the selection of any person performing services for
or acting on behalf of Party B; (iii) the selection of Party A as the
Counterparty; (iv) the terms of the Certificates; (v) the preparation of
or passing on the disclosure and other information contained in any
offering circular for the Certificates, the Pooling Agreement, or any
other agreements or documents used by any party in connection with the
marketing and sale of the Certificates; (vi) the ongoing operations and
administration of the Trust, including the furnishing of any information
to Party B which is not specifically required under this Agreement; or
(vii) any other aspect of the Trust's existence.
(k) COMMODITY EXCHANGE ACT. Each party represents to the other party on and as
of the date hereof and on each date on which a Transaction is entered into
among them that:
(i) such party is an "eligible contract participant" as defined
in the U.S. Commodity Exchange Act (the "CEA");
(ii) neither this Agreement nor any Transaction has been executed
or traded on a "trading facility" as such term is defined in the CEA; and
(iii) such party is entering into each Transaction in connection
with its business or a line of business and the terms of this Agreement
and each Transaction have been individually tailored and negotiated.
(l) SET-OFF. Without affecting the provisions of this Agreement requiring the
calculation of certain net payment amounts, all payments under this
Agreement will be made without set-off or counterclaim, except that if the
Trust fails to make a payment under this Agreement to Party A, Party A
will be entitled to set off against its obligations under this Agreement
the amounts owed under this Agreement by the Trust to Party A but unpaid
as of the date of any payment made by Party A to the Trust.
(m) LIMITATION OF LIABILITY. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by the
Trustee not in its individual capacity but solely as Trustee of the Long
Beach Mortgage Loan Trust 2005-WL2 (the "TRUST") under the Pooling
Agreement, in the exercise of the powers and authority conferred upon and
vested in it thereunder, (b) each of the representations, warranties,
covenants, undertakings and agreements herein made on the part of Party B
has not been made or intended as a representation, warranty, covenant,
undertaking or agreement by Deutsche Bank National Trust Company, in its
individual capacity, but is made and intended for the purpose of binding
only the Trust in accordance with the terms of the Pooling Agreement, (c)
nothing herein contained shall be construed as creating any liability on
Deutsche Bank National Trust Company, in its individual capacity, to
perform any covenant either expressed or implied contained herein, all
such liability, if any, being expressly waived by the parties hereto and
by any Person claiming by, through or under
B-1-17
the parties hereto and (d) under no circumstances shall Deutsche Bank
National Trust Company, in its individual capacity, be liable for the
payment of any indebtedness or expenses of Party B or be liable for the
breach or failure of any obligation, representation, warranty or covenant
made or undertaken by Party B under this Agreement or any other related
document, as to all of which recourse shall be had solely to the assets of
the Trust in accordance with the terms of the Pooling Agreement.
(n) JURISDICTION. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-" and (ii) deleting
the final paragraph thereof.
B-1-18
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized representatives as of the date of the Agreement.
CREDIT SUISSE FIRST BOSTON LONG BEACH MORTGAGE LOAN TRUST
INTERNATIONAL 2005-WL2
BY DEUTSCHE BANK NATIONAL TRUST
COMPANY, NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS TRUSTEE ON
BEHALF OF LONG BEACH MORTGAGE
LOAN TRUST 2005-WL2
By: _______________________________ By: _________________________________
Name: Name:
Title: Title:
By: _______________________________ By: _________________________________
Name: Name:
Title: Title:
B-1-19
ELECTIONS AND VARIABLES
TO THE ISDA CREDIT SUPPORT ANNEX
DATED AS OF AUGUST 23, 2005
BETWEEN
CREDIT SUISSE FIRST BOSTON AND LONG BEACH MORTGAGE LOAN
INTERNATIONAL TRUST 2005-WL2
("PARTY A") ("PARTY B")
PARAGRAPH 13.
(a) SECURITY INTEREST FOR "OBLIGATIONS".
The term "OBLIGATIONS" as used in this Annex includes the following additional
obligations:
With respect to Party A: None.
With respect to Party B: None.
(b) CREDIT SUPPORT OBLIGATIONS.
(i) DELIVERY AMOUNT, RETURN AMOUNT AND CREDIT SUPPORT AMOUNT.
(A) "DELIVERY AMOUNT" has the meaning specified in Paragraph
3(a).
(B) "RETURN AMOUNT" has the meaning specified in Paragraph 3(b).
(C) "CREDIT SUPPORT AMOUNT" has the meaning specified in
Paragraph 3.
(ii) ELIGIBLE COLLATERAL. On any date, the following items will
qualify as "ELIGIBLE COLLATERAL" for each party:
VALUATION
PERCENTAGE
(A) Cash 100%
(B) negotiable debt obligations issued after 18 July 1984 by the U.S. 100%
Treasury Department having a residual on such date of less than 1 year
(C) negotiable debt obligations issued after 18 July 1984 by the U.S. Treasury 97%
Department having a residual maturity on such date equal to or greater than 1
year but less than 5 years
(D) negotiable debt obligations issued after 18 July 1984 by the U.S. 95%
Treasury Department having a residual maturity on such date equal to or
greater than 5 years but less than 10 years
(E) (1) Agency Securities having a remaining stated maturity of up to ten years from 97%
the Valuation Date. "Agency Securities" means unsecured, unsubordinated
negotiable debt obligations issued by the Federal National Mortgage Association,
the Government National Mortgage Association, the Federal Home Loan Mortgage
B-1-20
Corporation, or the Federal Home Loan Banks, but excluding Interest-only and
principal-only securities.
(2) Agency Securities having a remaining stated maturity of greater than ten
years, but not more than 30 years, from the Valuation Date. 96%
(F) In respect of a party, such other assets as the other party may from time to time Such percentage as
specify in writing as qualifying as Eligible Collateral for the purpose of this shall, from time to
Annex (provided that any such assets shall cease to qualify as Eligible time, be specified by
Collateral if such other party subsequently specifies in writing that they shall the other party as
no longer qualify as Eligible Collateral). For the avoidance of doubt there are applying to such
no other assets which, as of the date of this Annex, qualify as Eligible Eligible Collateral.
Collateral for either party.
(iii) OTHER ELIGIBLE SUPPORT. With respect to a party, such Other Eligible Support as the other party may from
time to time specify in writing as qualifying as "OTHER ELIGIBLE SUPPORT" and for the avoidance of doubt
there are no items which qualify as Other Eligible Support for either party as of the date of this Annex.
(iv) THRESHOLDS.
(A) "INDEPENDENT AMOUNT" means with respect to Party A and Party B: Zero.
(B) "THRESHOLD" means with respect to Party A: Infinity; provided that should Party A fail to have a
long-term credit rating of at least "A" (or its equivalent) from at least one of the Rating Agencies
(as defined in the Schedule), then, for as long as such credit rating is below "A" (or its
equivalent), the Threshold with respect to Party A shall be zero (0).
"THRESHOLD" means with respect to Party B: Infinity
(C) "MINIMUM TRANSFER AMOUNT" means with respect to Party A: $250,000.
"MINIMUM TRANSFER AMOUNT" means with respect to Party B: Not applicable.
(D) ROUNDING. The Delivery Amount and the Return Amount will be rounded up and down respectively to the
nearest integral multiple of U.S.$10,000, provided that this "Rounding" provision shall not apply in
respect of any Return Amount payable in respect of any date on which Party B's Exposure is less than
or equal to zero.
(c) VALUATION AND TIMING.
(i) "VALUATION AGENT" means Party A.
(ii) "VALUATION DATE" means the first day of each calendar
week that is a Local Business Day which, if treated as a
Valuation Date, would result in a Delivery Amount or
Return Amount; or such other Local Business Day that
either party may elect to designate a Valuation Date by
notice to the Valuation Agent.
(iii) "VALUATION TIME" means the close of business in the city
of the Valuation Agent on the Local Business Day before
the Valuation Date or date of calculation, as
applicable, provided that the calculations of Value and
Exposure will be made as of approximately the same time
on the same date.
B-1-21
(iv) "NOTIFICATION TIME" means 4:00 p.m., London time, on a
Local Business Day.
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES.
(i) Subject to Paragraphs 13(d)(ii) and 13(d)(iii), for the
purposes of this Annex the following events will each be
a "SPECIFIED CONDITION" for the party or parties in
respect of which a cross has been placed under such
party's name (that party being the Affected Party if the
event occurs with respect to that party):
Party A Party B
- Illegality X X
- Credit Event Upon Merger X X
- Additional Termination Event(s):
An event which, with the giving of notice or the passage of X X
time, or both, would constitute one or more of the foregoing
events
(ii) For the purposes of sub-Paragraphs 4(a)(ii), 8(a)(2) and
8(b), the words "SPECIFIED CONDITION" shall be deleted
and the words "Termination Event" shall be substituted
therefor and provided further that for the purposes of
Paragraph 8(b) the words "or been designated" shall be
deleted in their entirety;
(iii) For the purposes of sub-Paragraph 8(a)(1) the words
"SPECIFIED CONDITION" shall be deleted in their
entirety.
(e) SUBSTITUTION.
(i) "SUBSTITUTION DATE" has the meaning specified in Paragraph
4(d)(ii).
(ii) CONSENT. The Pledgor does not need to obtain the Secured Party's
prior consent to any substitution pursuant to Paragraph 4(d).
(iii) RETURN PROCEDURE. In Paragraph 4(d)(ii) the words "not later than
the Local Business Day following" shall be deleted and replaced
with the words "as soon as practical after".
B-1-22
(f) DISPUTE RESOLUTION.
(i) "RESOLUTION TIME" means 4:00 p.m. London time on the Local
Business Day following the date on which the notice of the
dispute is given under Paragraph 5.
(ii) VALUE. For the purpose of Paragraphs 5(i)(C) and 5(ii), on any
date, the Value of Eligible Collateral and Posted Collateral will
be calculated as follows:
(A) with respect to any Cash; the amount thereof;
(B) with respect to any Eligible Collateral comprising
securities; the sum of (a)(x) the last mid-market price
on such date for such securities on the principal
national securities exchange on which such securities
are listed, multiplied by the applicable Valuation
Percentage or (y) where any such securities are not
listed on a national securities exchange, the mid-market
price for such securities quoted as at the close of
business on such date by any principal market maker for
such securities chosen by the Valuation Agent,
multiplied by the applicable Valuation Percentage or (z)
if no such bid price is listed or quoted for such date,
the last mid-market price listed or quoted (as the case
may be), as of the day next preceding such date on which
such prices were available; multiplied by the applicable
Valuation Percentage; plus (b) the accrued interest on
such securities (except to the extent that such interest
shall have been paid to the Pledgor pursuant to
Paragraph 6(d)(ii) or included in the applicable price
referred to in subparagraph (a) above) as of such date;
and
(C) with respect to any Eligible Collateral other than Cash
and securities; the fair market value of such Eligible
Collateral on such date, as determined in any reasonable
manner chosen by the Valuation Agent, multiplied by the
applicable Valuation Percentage.
(iii) ALTERNATIVE. The provisions of Paragraph 5 will apply provided
that the obligation of the appropriate party to deliver the
undisputed amount to the other party will not arise prior to the
time that would otherwise have applied to the Transfer pursuant
to, or deemed made, under Paragraph 3 if no dispute had arisen.
(g) HOLDING AND USING POSTED COLLATERAL.
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS:
Party A: Not applicable
Party B or its Custodian will be entitled to hold Posted
Collateral pursuant to Paragraph 6(b); provided that
(1) whichever of Party B or its Custodian that is
holding Posted Collateral, shall at all times have
a long term debt or deposit rating of at least A
from Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies Inc. and at
least A2 from Xxxxx'x Investors Service, Inc. (or
their respective successors) and have net capital
in excess of U.S.$500 million;
(2) the Custodian for Party B shall first be approved
by Party A and shall be an account holder in the
US Federal Reserve System; and
(3) Party B is not a Defaulting Party.
B-1-23
(h) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) INTEREST RATE. The "INTEREST RATE" will be, the effective rate
for Federal Funds, as published on Telerate Page 118, provided
that if, for any reason, Telerate Page 118 should be unavailable
the Interest Rate shall be such rate as the Secured Party shall
reasonably determine.
(ii) TRANSFER OF INTEREST AMOUNT. The Transfer of the Interest Amount
will be made on the second Local Business Day following the end
of each calendar month, to the extent that a Delivery Amount
would not be created or increased by that transfer in which event
such Interest Amount will be retained by the Secured Party, and
on any Local Business Day on which all Posted Collateral in the
form of Cash is Transferred to the Pledgor pursuant to Paragraph
3(b).
(iii) ALTERNATIVE TO INTEREST AMOUNT. The provisions of Paragraph
6(d)(ii) will apply and for the purposes of calculating the
Interest Amount the amount of interest calculated for each day of
the Interest Period shall be compounded daily.
(i) ADDITIONAL REPRESENTATION(S). There are no additional representations
by either party.
(j) OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time.
(ii) "Transfer" with respect to Other Eligible Support and Other
Posted Support shall have such meaning as the parties shall agree
in writing from time to time.
(k) DEMANDS AND NOTICES. All demands, specifications and notices under this
Annex will be made pursuant to the Notices Section of this Agreement,
save that any demand, specification or notice:
(i) shall be given to or made at the following addresses:
If to Party A:
Address: One Cabot Square, Attention: Collateral Management Xxxx
Xxxxxx X00 0XX
Xxxxxxx
Telephone: x00 00 0000 0000
Facsimile: x00 00 0000 0000
If to Party B:
Address: c/o Deutsche Bank National Trust Attention: LB05W2
Company
0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx,
Xxxxxxxxxx 00000-0000
Telephone 000-000-0000
No.:
or at such other address as the relevant party may from time to
time designate by giving notice (in accordance with the terms of this
paragraph) to the other party;
B-1-24
(ii) shall (unless otherwise stated in this Annex) be deemed to be
effective at the time such notice is actually received unless
such notice is received on a day which is not a Local Business
Day or after the Notification Time on any Local Business Day in
which event such notice shall be deemed to be effective on the
next succeeding Local Business Day.
(l) ADDRESS FOR TRANSFERS.
Party A: To be notified to Party B by Party A at the time of the
request for the Transfer.
Party B: To be notified to Party A by Party B at the time of the
request for the Transfer.
(m) OTHER PROVISIONS.
(i) ADDITIONAL DEFINITIONS. As used in this Annex:
"EQUIVALENT COLLATERAL" means, with respect to any security
constituting Posted Collateral, a security of the same issuer
and, as applicable, representing or having the same class,
series, maturity, interest rate, principal amount or liquidation
value and such other provisions as are necessary for that
security and the security constituting Posted Collateral to be
treated as equivalent in the market for such securities;
"LOCAL BUSINESS DAY" means: (i) any day on which commercial banks
are open for business (including dealings in foreign exchange and
foreign currency deposits) in London, and (ii) in relation to a
Transfer of Eligible Collateral, a day on which the clearance
system agreed between the parties for the delivery of Eligible
Collateral is open for acceptance and execution of settlement
instructions (or in the case of a Transfer of Cash or other
Eligible Collateral for which delivery is contemplated by other
means, a day on which commercial banks are open for business
(including dealings for foreign exchange and foreign deposits) in
New York and such other places as the parties shall agree);
(ii) TRANSFER TIMING
(a) Paragraph 4(b) shall be deleted and replaced in its
entirety by the following paragraph:
"Subject to Paragraphs 4(a) and 5 and unless otherwise
specified, if a demand for the Transfer of Eligible Credit
Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made
not later than the close of business on the second Local
Business Day thereafter; if a demand is made after the
Notification Time then the relevant Transfer will be made
not later than the close of business on the third Local
Business Day thereafter."
(b) Paragraph 6(d)(1) shall be amended so that the reference
therein to "the following Local Business Day" shall be
replaced by reference to "the second Local Business Day
thereafter".
(iii) HOLDING COLLATERAL. The Secured Party shall cause any Custodian
appointed hereunder to open and maintain a segregated account and
to hold, record and identify all the Posted Collateral in such
segregated account and, subject to Paragraphs 6(c) and 8(a), such
Posted Collateral shall at all times be and remain the property
of the Pledgor and shall at no time constitute the property of,
or be commingled with the property of, the Secured Party or the
Custodian.
B-1-25
CREDIT SUISSE FIRST BOSTON LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
INTERNATIONAL
By Deutsche Bank National Trust
Company, not in its individual
capacity but solely as Trustee on
behalf of Long Beach Mortgage Loan
Trust 2005-WL2
By:____________________________ By:________________________________
Name: Name:
Title: Title:
By:____________________________ By:________________________________
Name: Name:
Title: Title:
B-1-26
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Yours faithfully,
Credit Suisse First Boston International
By:_____________________________________
Name:
Title:
Confirmed as of the date first written above:
Long Beach Mortgage Loan Trust 2005-WL2
By Deutsche Bank National Trust Company,
not in its individual capacity but solely
as Trustee on behalf of the Trust
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
X-0-00
XXXXXXX X-0
FORM OF GROUP II SENIOR CAP AGREEMENT
FACSIMILE COVER SHEET
To: Long Beach Mortgage Loan Trust 2005-WL2
Attention: Xxxxxxxx Xxxxx, CSFBi Marketer
Fax number: To be hand delivered by Xxxxxxxx Xxxxx
Date: 30 August 2005
Pages (including cover page): 7
Our Reference No: External ID: 53079417N3 / Risk ID: 447309978 / 993
Credit Suisse First Boston International has entered into a transaction
with you as attached. Please find attached a letter agreement (the
"Confirmation") which confirms the terms and conditions of the above
transaction.
If you agree with the terms specified therein, PLEASE ARRANGE FOR THE
CONFIRMATION TO BE SIGNED BY YOUR AUTHORISED SIGNATORIES and return a signed
copy to this office to the facsimile listed below.
FOR INTEREST RATE PRODUCTS: FOR EQUITY DERIVATIVES:
Telephone Numbers: (000) 000-0000 Telephone numbers: (000) 000-0000 /
Facsimile number: (000) 000-0000 (000) 000-0000 / (000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx Facsimile number: (000) 000-0000
FOR CREDIT DERIVATIVES:
Telephone Numbers: (000) 000-0000
Facsimile number: (000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx
We are delighted to have entered into this transaction with you.
CONFIDENTIALITY NOTICE: This facsimile is intended only for the use of the
individual or entity to which it is addressed and may contain information which
is privileged and confidential. If the reader of this message is not the
intended recipient or an employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately by telephone and return the original message to us by mail. Thank
you.
B-2-1
30 August 2005
Long Beach Mortgage Loan Trust 2005-WL2
(II) EXTERNAL ID: 53079417N3
--------------------------------------------------------------------------------
Dear Sirs,
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Swap Transaction entered into between us on the
Trade Date specified below (the "Swap Transaction"). This Confirmation
constitutes a "Confirmation" as referred to in the Agreement specified below.
IN THIS CONFIRMATION "CSFBI" MEANS CREDIT SUISSE FIRST BOSTON INTERNATIONAL AND
"COUNTERPARTY" MEANS LONG BEACH MORTGAGE LOAN TRUST 2005-WL2.
2. The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation supplements, forms part of, and is subject to, the 1992
ISDA Master Agreement dated as of 23 August 2005 as amended and
supplemented from time to time (the "Agreement"), between you and us. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
CSFBi and Counterparty each represents to the other that it has entered
into this Swap Transaction in reliance upon such tax, accounting,
regulatory, legal, and financial advice as it deems necessary and not upon
any view expressed by the other.
Terms used herein and not defined herein, in the 2000 ISDA Definitions or
the Agreement shall have the meanings ascribed to such terms in the
Pooling and Servicing Agreement, dated as of August 1, 2005 (the "PSA"),
among Long Beach Securities Corp., as Depositor, Long Beach Mortgage
Company, as Master Servicer, and Deutsche Bank Trust Company, as Trustee."
2. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Transaction Type: Rate Cap Transaction
B-2-2
Notional Amount: Initially, USD 667,906,580, and
thereafter the lesser of (i) the
amount set forth in the Additional
Terms opposite the related Calculation
Period and (ii) the aggregate
outstanding Certificate Principal
Balance of the Group II Senior
Certificates immediately prior to the
Distribution Date corresponding to the
related Calculation Period
Trade Date: 24 August 2005
Effective Date: 30 August 2005
Termination Date: 25 November 2008, subject to
adjustment in accordance with the
Modified Following Business Day
Convention
Fixed Amounts:
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date: 30 August 2005, inclusive, subject to
adjustment in accordance with the
Following Business Day Convention
Fixed Amount: USD 72,000
CSFBi Floating Amounts:
CSFBi Floating Rate
Payment Dates: The 25th of each month, commencing on
25 October 2005, and ending on the
Termination Date, inclusive, subject
to adjustment in accordance with the
Modified Following Business Day
Convention
CSFBi Floating Rate Payer
initial Calculation Period From and including 25 September 2005
up to but excluding the Payment Date
scheduled to occur on 25 October 2005.
CSFBi cap rate: See Additional Terms
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 month
B-2-3
Spread: None
Floating Rate: As defined in the 2000 ISDA
Definitions, provided that, if the
Floating Rate for any Calculation
Period would exceed 10.24 per cent.,
the Floating Rate for such Calculation
Period shall be deemed to be 10.24 per
cent.
Floating Rate
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period
Compounding: Inapplicable
Business Days: New York
Calculation Agent: CSFBi
Account Details:
Payments to CSFBi: As advised separately in writing
Payments to Counterparty: As advised separately in writing
Credit Suisse First Boston International is authorised and regulated by the
Financial Services Authority and has entered into this transaction as principal.
The time at which the above transaction was executed will be notified to
Counterparty on request.
B-2-4
ADDITIONAL TERMS
--------------------------------------------------------------------------------
CALCULATION PERIOD UP TO NOTIONAL AMOUNT: CSFBI CAP
BUT EXCLUDING THE CSFBI RATE:
FLOATING RATE PAYMENT
DATE SCHEDULED TO OCCUR
ON:
--------------------------------------------------------------------------------
25 October 2005 USD 667,906,580 6.80%
--------------------------------------------------------------------------------
25 November 2005 USD 657,636,892 6.57%
--------------------------------------------------------------------------------
25 December 2005 USD 645,757,883 6.81%
--------------------------------------------------------------------------------
25 January 2006 USD 632,298,562 6.58%
--------------------------------------------------------------------------------
25 February 2006 USD 617,294,969 6.58%
--------------------------------------------------------------------------------
25 March 2006 USD 600,793,544 7.31%
--------------------------------------------------------------------------------
25 April 2006 USD 582,850,041 6.58%
--------------------------------------------------------------------------------
25 May 2006 USD 563,529,324 6.81%
--------------------------------------------------------------------------------
25 June 2006 USD 543,038,157 6.59%
--------------------------------------------------------------------------------
25 July 2006 USD 523,094,576 6.82%
--------------------------------------------------------------------------------
25 August 2006 USD 503,687,560 6.59%
--------------------------------------------------------------------------------
25 September 2006 USD 484,802,647 6.59%
--------------------------------------------------------------------------------
25 October 2006 USD 466,425,799 6.82%
--------------------------------------------------------------------------------
25 November 2006 USD 448,543,357 6.59%
--------------------------------------------------------------------------------
25 December 2006 USD 431,142,028 6.83%
--------------------------------------------------------------------------------
25 January 2007 USD 414,208,877 6.60%
--------------------------------------------------------------------------------
25 February 2007 USD 397,731,319 6.60%
--------------------------------------------------------------------------------
25 March 2007 USD 381,697,103 7.34%
--------------------------------------------------------------------------------
25 April 2007 USD 366,094,308 6.61%
--------------------------------------------------------------------------------
25 May 2007 USD 350,911,336 6.83%
--------------------------------------------------------------------------------
25 June 2007 USD 334,793,438 8.02%
--------------------------------------------------------------------------------
25 July 2007 USD 303,355,596 8.29%
--------------------------------------------------------------------------------
25 August 2007 USD 273,845,157 8.00%
--------------------------------------------------------------------------------
25 September 2007 USD 246,182,442 8.00%
--------------------------------------------------------------------------------
25 October 2007 USD 221,049,730 8.26%
--------------------------------------------------------------------------------
B-2-5
--------------------------------------------------------------------------------
CALCULATION PERIOD UP TO NOTIONAL AMOUNT: CSFBI CAP
BUT EXCLUDING THE CSFBI RATE:
FLOATING RATE PAYMENT
DATE SCHEDULED TO OCCUR
ON:
--------------------------------------------------------------------------------
25 November 2007 USD 206,909,648 7.98%
--------------------------------------------------------------------------------
25 December 2007 USD 193,282,110 9.00%
--------------------------------------------------------------------------------
25 January 2008 USD 180,125,631 8.70%
--------------------------------------------------------------------------------
25 February 2008 USD 167,420,269 8.70%
--------------------------------------------------------------------------------
25 March 2008 USD 155,150,371 9.31%
--------------------------------------------------------------------------------
25 April 2008 USD 143,300,834 8.71%
--------------------------------------------------------------------------------
25 May 2008 USD 131,857,080 9.19%
--------------------------------------------------------------------------------
25 June 2008 USD 120,808,929 9.63%
--------------------------------------------------------------------------------
25 July 2008 USD 110,139,007 9.95%
--------------------------------------------------------------------------------
25 August 2008 USD 99,833,851 9.61%
--------------------------------------------------------------------------------
25 September 2008 USD 89,880,834 9.60%
--------------------------------------------------------------------------------
25 October 2008 USD 89,880,834 9.93%
--------------------------------------------------------------------------------
25 November 2008 USD 89,880,834 9.65%
--------------------------------------------------------------------------------
B-2-6
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Yours faithfully,
Credit Suisse First Boston International
By:_____________________________________
Name:
Title:
Confirmed as of the date first written above:
Long Beach Mortgage Loan Trust 2005-WL2
By Deutsche Bank National Trust Company, not
in its individual capacity but solely as
Trustee on behalf of the Trust
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
B-2-7
SCHEDULE TO MASTER AGREEMENT AND ISDA CREDIT SUPPORT ANNEX
SEE EXHIBIT B-1
B-2-8
EXHIBIT B-3
FORM OF GROUP III SENIOR CAP AGREEMENT
FACSIMILE COVER SHEET
To: Long Beach Mortgage Loan Trust 2005-WL2
Attention: Xxxxxxxx Xxxxx, CSFBi Marketer
Fax number: To be hand delivered by Xxxxxxxx Xxxxx
Date: 30 August 2005
Pages (including cover page): 7
Our Reference No: External ID: 53079423N3 / Risk ID: 447309995 / 447310002
Credit Suisse First Boston International has entered into a transaction
with you as attached. Please find attached a letter agreement (the
"Confirmation") which confirms the terms and conditions of the above
transaction.
If you agree with the terms specified therein, PLEASE ARRANGE FOR THE
CONFIRMATION TO BE SIGNED BY YOUR AUTHORISED SIGNATORIES and return a signed
copy to this office to the facsimile listed below.
FOR INTEREST RATE PRODUCTS: FOR EQUITY DERIVATIVES:
Telephone Numbers: (000) 000-0000 Telephone numbers: (000) 000-0000 /
Facsimile number: (000) 000-0000 (000) 000-0000 / (000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx Facsimile number: (000) 000-0000
FOR CREDIT DERIVATIVES:
Telephone Numbers: (000) 000-0000
Facsimile number: (000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx
We are delighted to have entered into this transaction with you.
CONFIDENTIALITY NOTICE: This facsimile is intended only for the use of the
individual or entity to which it is addressed and may contain information which
is privileged and confidential. If the reader of this message is not the
intended recipient or an employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately by telephone and return the original message to us by mail. Thank
you.
30 August 2005
X-0-0
Xxxx Xxxxx Xxxxxxxx Xxxx Xxxxx 0000-XX0
(XXX) EXTERNAL ID: 530794237N3
--------------------------------------------------------------------------------
Dear Sirs,
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Swap Transaction entered into between us on the
Trade Date specified below (the "Swap Transaction"). This Confirmation
constitutes a "Confirmation" as referred to in the Agreement specified below.
IN THIS CONFIRMATION "CSFBI" MEANS CREDIT SUISSE FIRST BOSTON INTERNATIONAL AND
"COUNTERPARTY" MEANS LONG BEACH MORTGAGE LOAN TRUST 2005-WL2.
3. The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation supplements, forms part of, and is subject to, the 1992
ISDA Master Agreement dated as of 23 August 2005 as amended and
supplemented from time to time (the "Agreement"), between you and us. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
CSFBi and Counterparty each represents to the other that it has entered
into this Swap Transaction in reliance upon such tax, accounting,
regulatory, legal, and financial advice as it deems necessary and not upon
any view expressed by the other.
Terms used herein and not defined herein, in the 2000 ISDA Definitions or
the Agreement shall have the meanings ascribed to such terms in the
Pooling and Servicing Agreement, dated as of August 1, 2005 (the "PSA"),
among Long Beach Securities Corp., as Depositor, Long Beach Mortgage
Company, as Master Servicer, and Deutsche Bank Trust Company, as Trustee.
2. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Transaction Type: Rate Cap Transaction
B-3-2
Notional Amount: Initially, USD 771,834,135, and
thereafter the lesser of (i) the
amount set forth in the Additional
Terms opposite the related Calculation
Period and (ii) the aggregate
outstanding Certificate Principal
Balance of the Group III Senior
Certificates (other than the Class
III-A1 Certficates) immediately prior
to the Distribution Date corresponding
to the related Calculation Period
Trade Date: 24 August 2005
Effective Date: 30 August 2005
Termination Date: 25 November 2008, subject to
adjustment in accordance with the
Modified Following Business Day
Convention
Fixed Amounts:
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date: 30 August 2005, inclusive, subject to
adjustment in accordance with the
Following Business Day Convention
Fixed Amount: USD 83,000
CSFBi Floating Amounts:
CSFBi Floating Rate
Payment Dates: The 25th of each month, commencing on
25 October 2005, and ending on the
Termination Date, inclusive, subject
to adjustment in accordance with the
Modified Following Business Day
Convention
CSFBi Floating Rate Payer
initial Calculation Period From and including 25 September 2005
up to but excluding the Payment Date
scheduled to occur on 25 October 2005.
CSFBi cap rate: See Additional Terms
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 month
B-3-3
Spread: None
Floating Rate: As defined in the 2000 ISDA
Definitions, provided that, if the
Floating Rate for any Calculation
Period would exceed 10.23 per cent.,
the Floating Rate for such Calculation
Period shall be deemed to be 10.23 per
cent.
Floating Rate
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period
Business Days: New York
Calculation Agent: CSFBi
Account Details:
Payments to CSFBi: As advised separately in writing
Payments to Counterparty: As advised separately in writing
Credit Suisse First Boston International is authorised and regulated by the
Financial Services Authority and has entered into this transaction as principal.
The time at which the above transaction was executed will be notified to
Counterparty on request.
B-3-4
ADDITIONAL TERMS
--------------------------------------------------------------------------------
CALCULATION PERIOD UP TO NOTIONAL AMOUNT: CSFBI CAP
BUT EXCLUDING THE CSFBI RATE:
FLOATING RATE PAYMENT
DATE SCHEDULED TO OCCUR
ON:
--------------------------------------------------------------------------------
25 October 2005 USD 771,834,135 6.75%
--------------------------------------------------------------------------------
25 November 2005 USD 759,740,294 6.52%
--------------------------------------------------------------------------------
25 December 2005 USD 745,751,322 6.75%
--------------------------------------------------------------------------------
25 January 2006 USD 729,901,639 6.53%
--------------------------------------------------------------------------------
25 February 2006 USD 712,234,590 6.53%
--------------------------------------------------------------------------------
25 March 2006 USD 692,805,852 7.26%
--------------------------------------------------------------------------------
25 April 2006 USD 671,682,172 6.53%
--------------------------------------------------------------------------------
25 May 2006 USD 648,941,191 6.76%
--------------------------------------------------------------------------------
25 June 2006 USD 625,020,983 6.53%
--------------------------------------------------------------------------------
25 July 2006 USD 601,745,295 6.77%
--------------------------------------------------------------------------------
25 August 2006 USD 579,102,975 6.54%
--------------------------------------------------------------------------------
25 September 2006 USD 557,076,823 6.54%
--------------------------------------------------------------------------------
25 October 2006 USD 535,650,108 6.77%
--------------------------------------------------------------------------------
25 November 2006 USD 514,806,552 6.54%
--------------------------------------------------------------------------------
25 December 2006 USD 494,530,319 6.77%
--------------------------------------------------------------------------------
25 January 2007 USD 474,806,097 6.55%
--------------------------------------------------------------------------------
25 February 2007 USD 455,618,796 6.55%
--------------------------------------------------------------------------------
25 March 2007 USD 436,953,832 7.28%
--------------------------------------------------------------------------------
25 April 2007 USD 418,797,018 6.55%
--------------------------------------------------------------------------------
25 May 2007 USD 401,134,550 6.78%
--------------------------------------------------------------------------------
25 June 2007 USD 380,196,658 7.98%
--------------------------------------------------------------------------------
25 July 2007 USD 342,245,584 8.25%
--------------------------------------------------------------------------------
25 August 2007 USD 306,646,313 7.97%
--------------------------------------------------------------------------------
25 September 2007 USD 273,324,493 7.96%
--------------------------------------------------------------------------------
25 October 2007 USD 244,371,431 8.22%
--------------------------------------------------------------------------------
B-3-5
--------------------------------------------------------------------------------
CALCULATION PERIOD UP TO NOTIONAL AMOUNT: CSFBI CAP
BUT EXCLUDING THE CSFBI RATE:
FLOATING RATE PAYMENT
DATE SCHEDULED TO OCCUR
ON:
--------------------------------------------------------------------------------
25 November 2007 USD 227,822,068 7.94%
--------------------------------------------------------------------------------
25 December 2007 USD 211,902,257 8.95%
--------------------------------------------------------------------------------
25 January 2008 USD 196,550,520 8.65%
--------------------------------------------------------------------------------
25 February 2008 USD 181,737,962 8.65%
--------------------------------------------------------------------------------
25 March 2008 USD 167,445,583 9.26%
--------------------------------------------------------------------------------
25 April 2008 USD 153,655,051 8.66%
--------------------------------------------------------------------------------
25 May 2008 USD 140,348,680 9.15%
--------------------------------------------------------------------------------
25 June 2008 USD 127,521,539 9.56%
--------------------------------------------------------------------------------
25 July 2008 USD 115,145,183 9.89%
--------------------------------------------------------------------------------
25 August 2008 USD 103,202,961 9.56%
--------------------------------------------------------------------------------
25 September 2008 USD 91,679,378 9.55%
--------------------------------------------------------------------------------
25 October 2008 USD 91,679,378 9.87%
--------------------------------------------------------------------------------
25 November 2008 USD 91,679,378 9.60%
--------------------------------------------------------------------------------
B-3-6
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Yours faithfully,
Credit Suisse First Boston International
By:_____________________________________
Name:
Title:
Confirmed as of the date first written above:
Long Beach Mortgage Loan Trust 2005-WL2
By Deutsche Bank National Trust Company,
not in its individual capacity but solely as
Trustee on behalf of the Trust
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
B-3-7
SCHEDULE TO MASTER AGREEMENT AND ISDA CREDIT SUPPORT ANNEX
SEE EXHIBIT B-1
B-3-8
EXHIBIT B-4
FORM OF SUBORDINATE CAP AGREEMENT
FACSIMILE COVER SHEET
To: Long Beach Mortgage Loan Trust 2005-WL2
Attention: Xxxxxxxx Xxxxx, CSFBi Marketer
Fax number: To be hand delivered by Xxxxxxxx Xxxxx
Date: 30 August 2005
Pages (including cover page): 7
Our Reference No: External ID: 53079428N3 / Risk ID: 447310012 / 44731015
Credit Suisse First Boston International has entered into a transaction
with you as attached. Please find attached a letter agreement (the
"Confirmation") which confirms the terms and conditions of the above
transaction.
If you agree with the terms specified therein, PLEASE ARRANGE FOR THE
CONFIRMATION TO BE SIGNED BY YOUR AUTHORISED SIGNATORIES and return a signed
copy to this office to the facsimile listed below.
FOR INTEREST RATE PRODUCTS: FOR EQUITY DERIVATIVES:
Telephone Numbers: (000) 000-0000 Telephone numbers: (000) 000-0000 /
Facsimile number: (000) 000-0000 (000) 000-0000 / (000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx Facsimile number: (000) 000-0000
FOR CREDIT DERIVATIVES:
Telephone Numbers: (000) 000-0000
Facsimile number: (000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx
We are delighted to have entered into this transaction with you.
CONFIDENTIALITY NOTICE: This facsimile is intended only for the use of the
individual or entity to which it is addressed and may contain information which
is privileged and confidential. If the reader of this message is not the
intended recipient or an employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately by telephone and return the original message to us by mail. Thank
you.
B-4-1
30 August 2005
Long Beach Mortgage Loan Trust 2005-WL2
(IV) EXTERNAL ID: 53079428N3
--------------------------------------------------------------------------------
Dear Sirs,
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Swap Transaction entered into between us on the
Trade Date specified below (the "Swap Transaction"). This Confirmation
constitutes a "Confirmation" as referred to in the Agreement specified below.
IN THIS CONFIRMATION "CSFBI" MEANS CREDIT SUISSE FIRST BOSTON INTERNATIONAL AND
"COUNTERPARTY" MEANS LONG BEACH MORTGAGE LOAN TRUST 2005-WL2.
4. The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation supplements, forms part of, and is subject to, the 1992
ISDA Master Agreement dated as of 23 August 2005 as amended and
supplemented from time to time (the "Agreement"), between you and us. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
CSFBi and Counterparty each represents to the other that it has entered
into this Swap Transaction in reliance upon such tax, accounting,
regulatory, legal, and financial advice as it deems necessary and not upon
any view expressed by the other.
Terms used herein and not defined herein, in the 2000 ISDA Definitions or
the Agreement shall have the meanings ascribed to such terms in the
Pooling and Servicing Agreement, dated as of August 1, 2005 (the "PSA"),
among Long Beach Securities Corp., as Depositor, Long Beach Mortgage
Company, as Master Servicer, and Deutsche Bank Trust Company, as Trustee.
2. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Transaction Type: Rate Cap Transaction
Notional Amount: Initially, USD 599,367,000, and
thereafter the lesser of (i) [USD
599,367,000] and (ii) the aggregate
B-4-2
outstanding Certificate Principal
Balance of the Mezzanine Certificates
and the Class B Certificates
immediately prior to the Distribution
Date corresponding to the related
Calculation Period
Trade Date: 24 August 2005
Effective Date: 30 August 2005
Termination Date: 25 May 2008, subject to adjustment in
accordance with the Modified Following
Business Day Convention
Fixed Amounts:
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date: 30 August 2005, inclusive, subject to
adjustment in accordance with the
Following Business Day Convention
Fixed Amount: USD 423,000
CSFBi Floating Amounts:
CSFBi Floating Rate
Payment Dates: The 25th of each month, commencing on
25 October 2005, and ending on the
Termination Date, inclusive, subject
to adjustment in accordance with the
Modified Following Business Day
Convention
CSFBi Floating Rate Payer
initial Calculation Period From and including 25 September 2005
up to but excluding the Payment Date
scheduled to occur on 25 October 2005.
CSFBi cap rate: See Additional Terms
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 month
Spread: None
Floating Rate: As defined in the 2000 ISDA
Definitions, provided that, if the
Floating Rate for any Calculation
Period would exceed 8.54 per cent.,
the Floating Rate for such Calculation
Period shall be deemed to be 8.54
percent.
B-4-3
Floating Rate
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period
Compounding: Inapplicable
Business Days: New York
Calculation Agent: CSFBi
Account Details:
Payments to CSFBi: As advised separately in writing
Payments to Counterparty: As advised separately in writing
Credit Suisse First Boston International is authorised and regulated by the
Financial Services Authority and has entered into this transaction as principal.
The time at which the above transaction was executed will be notified to
Counterparty on request.
B-4-4
ADDITIONAL TERMS
---------------------------------------------------
CALCULATION PERIOD UP TO CSFBI CAP
BUT EXCLUDING THE CSFBI RATE:
FLOATING RATE PAYMENT DATE
SCHEDULED TO OCCUR ON:
---------------------------------------------------
25 October 2005 5.79%
---------------------------------------------------
25 November 2005 5.57%
---------------------------------------------------
25 December 2005 5.80%
---------------------------------------------------
25 January 2006 5.58%
---------------------------------------------------
25 February 2006 5.58%
---------------------------------------------------
25 March 2006 6.28%
---------------------------------------------------
25 April 2006 5.58%
---------------------------------------------------
25 May 2006 5.80%
---------------------------------------------------
25 June 2006 5.59%
---------------------------------------------------
25 July 2006 5.81%
---------------------------------------------------
25 August 2006 5.59%
---------------------------------------------------
25 September 2006 5.59%
---------------------------------------------------
25 October 2006 5.80%
---------------------------------------------------
25 November 2006 5.59%
---------------------------------------------------
25 December 2006 5.81%
---------------------------------------------------
25 January 2007 5.59%
---------------------------------------------------
25 February 2007 5.59%
---------------------------------------------------
25 March 2007 6.30%
---------------------------------------------------
25 April 2007 5.59%
---------------------------------------------------
25 May 2007 5.81%
---------------------------------------------------
25 June 2007 6.99%
---------------------------------------------------
25 July 2007 7.25%
---------------------------------------------------
25 August 2007 6.97%
---------------------------------------------------
25 September 2007 6.97%
---------------------------------------------------
25 October 2007 7.22%
---------------------------------------------------
B-4-5
---------------------------------------------------
CALCULATION PERIOD UP TO CSFBI CAP
BUT EXCLUDING THE CSFBI RATE:
FLOATING RATE PAYMENT DATE
SCHEDULED TO OCCUR ON:
---------------------------------------------------
25 November 2007 6.95%
---------------------------------------------------
25 December 2007 7.96%
---------------------------------------------------
25 January 2008 7.67%
---------------------------------------------------
25 February 2008 7.67%
---------------------------------------------------
25 March 2008 8.26%
---------------------------------------------------
25 April 2008 7.71%
---------------------------------------------------
25 May 2008 8.33%
---------------------------------------------------
B-4-6
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Yours faithfully,
Credit Suisse First Boston International
By:_____________________________________
Name:
Title:
Confirmed as of the date first written above:
Long Beach Mortgage Loan Trust 2005-WL2
By Deutsche Bank National Trust Company,
not in its individual capacity but solely as
Trustee on behalf of the Trust
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
B-4-7
SCHEDULE TO MASTER AGREEMENT AND ISDA CREDIT SUPPORT ANNEX
SEE EXHIBIT B-1
B-4-8
EXHIBIT C
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
C-1
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement"), dated
August 25, 2005, between Long Beach Securities Corp., a Delaware corporation
(the "Purchaser") and Long Beach Mortgage Company, a Delaware corporation (the
"Seller").
Preliminary Statement
The Seller intends to sell certain mortgage loans to the Purchaser
on the terms and subject to the conditions set forth in this Agreement. The
Purchaser intends to deposit the mortgage loans into three mortgage pools
constituting the trust fund. The trust fund will issue fixed rate and adjustable
rate asset backed certificates designated as Long Beach Mortgage Loan Trust
2005-WL2 Asset-Backed Certificates, Series 2005-WL2 (the "Certificates"). The
Certificates will consist of twenty-seven classes of certificates. The
Certificates will be issued pursuant to a Pooling and Servicing Agreement, dated
as of August 1, 2005 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor, Deutsche Bank National Trust Company, as trustee (the
"Trustee") and the Seller, as master servicer (in such capacity, the "Master
Servicer"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement.
The parties hereto agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, on
or before August 30, 2005 (the "Closing Date"), certain fixed-rate and
adjustable-rate residential mortgage loans (the "Mortgage Loans").
SECTION 2. Mortgage Loan Schedule.
The Purchaser and the Seller have agreed upon which of the mortgage
loans owned by the Seller are to be purchased by the Purchaser pursuant to this
Agreement on the Closing Date and the Seller shall prepare or cause to be
prepared on or prior to the Closing Date a final schedule (the "Closing
Schedule") that shall describe such Mortgage Loans and set forth all of the
Mortgage Loans to be purchased under this Agreement. The Closing Schedule shall
conform to the requirements set forth in this Agreement and to the definition of
"Mortgage Loan Schedule" under the Pooling and Servicing Agreement. The Closing
Schedule shall be the Mortgage Loan Schedule under the Pooling and Servicing
Agreement.
SECTION 3. Consideration.
In consideration for the Mortgage Loans to be purchased hereunder,
the Purchaser shall on the Closing Date, as described in Section 8 hereof, (i)
pay to or upon the order of the Seller in immediately available funds an amount
(the "Purchase Price") equal to the proceeds of the Class A Certificates and the
Mezzanine Certificates, net of the aggregate amount of the underwriting
commissions and discounts applicable to such certificates, and the purchase
price of the Class B Certificates; (ii) deliver to the Seller or, upon Seller's
direction, to
another party, upon the order of the Seller, the Class C Certificates, the Class
P Certificates, the Class R Certificates, the Class R-CX Certificates and the
Class R-PX Certificates (the "Long Beach Certificates"); and (iii) pay to the
Seller in immediately available funds a securitization fee of $1,172,022.58 (the
"Securitization Fee").
The Purchaser or any assignee, transferee or designee of the
Purchaser shall be entitled to (i) all scheduled payments of principal due after
August 1, 2005 (the "Cut-off Date"), (ii) all unscheduled collections in respect
of the Mortgage Loans received after the Cut-off Date (other than the portion of
such collections due on or prior to the Cut-off Date), (iii) all other payments
of principal due and collected after the Cut-off Date, and (iv) all payments of
interest on the Mortgage Loans due after the Cut-off Date. All scheduled
payments of principal and interest due on or before the Cut-off Date and
collected after the Cut-off Date shall belong to the Seller.
Pursuant to the Pooling and Servicing Agreement, the Purchaser will
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders, all the right, title and interest of
the Purchaser in and to the Mortgage Loans, together with its rights under this
Agreement (other than Section 17 hereof).
SECTION 4. Transfer of the Mortgage Loans.
(a) Possession of Mortgage Files. The Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, but
subject to the terms of this Agreement, all of its right, title and interest in,
to and under the Mortgage Loans. The contents of each Mortgage File related to a
Mortgage Loan not delivered to the Purchaser or to any assignee, transferee or
designee of the Purchaser on or prior to the Closing Date are and shall be held
in trust by the Seller for the benefit of the Purchaser or any assignee,
transferee or designee of the Purchaser and promptly transferred to the Trustee.
Upon the sale of the Mortgage Loans, the ownership of each related Mortgage
Note, the related Mortgage and the other contents of the related Mortgage File
shall be vested in the Purchaser and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller on or after the Closing Date shall immediately vest in
the Purchaser and shall be delivered promptly to the Purchaser or as otherwise
directed by the Purchaser.
(b) Delivery of Mortgage Loan Documents. The Seller will, on or
prior to the Closing Date deliver or cause to be delivered to the Purchaser, the
Trustee or their designee each of the following documents for each Mortgage
Loan:
(i) the original Mortgage Note, endorsed in blank or
in the following form: "Pay to the order of Deutsche Bank National Trust
Company, as Trustee, under the applicable agreement, without recourse,"
with all prior and intervening endorsements, showing a complete chain of
endorsement from the originator to the Person so endorsing to the Trustee
or (in the case of not more than 1.00% of the Mortgage Loans, by aggregate
principal balance as of the Cut-off Date) a copy of such original Mortgage
Note with an accompanying Lost Note Affidavit executed by the Seller;
2
(ii) the original Mortgage with evidence of recording
thereon, and a copy, certified by the appropriate recording office, of the
recorded power of attorney, if the Mortgage was executed pursuant to a
power of attorney, with evidence of recording thereon;
(iii) an original Assignment in blank;
(iv) the original recorded Assignment or Assignments
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee or in blank;
(v) the original or copies of each assumption,
modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy, (or a
copy of the above, in the case of any Washington Mutual Mortgage Loans)
together with all endorsements or riders issued with or subsequent to the
issuance of such policy, insuring the priority of the Mortgage as a first
lien or second lien on the Mortgaged Property represented therein as a fee
interest vested in the Mortgagor, or in the event such title policy is
unavailable, a written commitment or uniform binder or preliminary report
of the title issued by the title insurance or escrow company.
The Seller shall promptly (and in no event later than thirty (30)
Business Days, subject to extension upon a mutual agreement between the Seller
and the Purchaser) following the later of the Closing Date and the date of
receipt by the Seller of the recording information for a Mortgage submit or
cause to be submitted for recording, at no expense to the Purchaser, in the
appropriate public office for real property records, each Assignment referred to
in (iii) and (iv) above and shall execute each original Assignment referred to
in clause (iii) above in the following form: "Deutsche Bank National Trust
Company, as Trustee under the applicable agreement, without recourse." In the
event that any such Assignment is lost or returned unrecorded because of a
defect therein, the Seller shall promptly prepare or cause to be prepared a
substitute Assignment or cure or cause to be cured such defect, as the case may
be, and thereafter cause each such Assignment to be duly recorded.
Notwithstanding the foregoing, the Assignments referred to in (iii) and (iv)
above shall not be required to be completed and submitted for recording with
respect to any Mortgage Loan if each Rating Agency does not require recordation
for such Rating Agency to assign the initial ratings to the Class A
Certificates, the Mezzanine Certificates, the Class B Certificates and the Other
NIM Notes and initial shadow rating to the Insured NIM Notes, without giving
effect to any insurance policy issued by the NIMS Insurer; provided, however,
each Assignment referred to in (iii) and (iv) above shall be submitted for
recording by the Seller, in the manner described above, at no expense to the
Purchaser, Trust Fund or the Trustee, upon the earliest to occur of: (i)
reasonable direction by Holders of Certificates entitled to at least 25% of the
Voting Rights, (ii) the occurrence of a Master Servicer Event of Default, (iii)
the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02
of the Pooling and Servicing Agreement and (v) if the Seller is not the Master
Servicer and with respect to any one Assignment, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related Mortgage.
3
If any document referred to in Section 4(b)(ii), Section 4(b)(iii),
Section 4(b)(iv), or Section 4(b)(v) above (collectively, the "Recording
Documents") has as of the Closing Date been submitted for recording but either
(x) has not been returned from the applicable public recording office or (y) has
been lost or such public recording office has retained the original of such
document, the obligations of the Seller to deliver such Recording Documents
shall be deemed to be satisfied upon (1) delivery to the Purchaser, the Trustee
or their designee of a copy of each such Recording Document certified by the
Seller in the case of (x) above or the applicable public recording office in the
case of (y) above to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the Seller,
delivery to the Purchaser, the Trustee or their designee upon receipt thereof,
and in any event no later than one year after the Closing Date (except as
provided below), of either the original or a copy of such Recording Document
certified by the applicable public recording office to be a true and complete
copy of the original. In instances where, due to a delay on the part of the
applicable recording office where any such Recording Documents have been
delivered for recordation, the Recording Documents cannot be delivered to the
Purchaser, the Trustee or their designee within one year after the Closing Date,
the Seller shall deliver to the Purchaser, the Trustee or their designee within
such time period an Officer's Certificate stating the date by which the Seller
expects to receive such Recording Documents from the applicable recording
office. If the Recording Documents have still not been received by the Seller
and delivered to the Purchaser, the Trustee or their designee by such date, the
Seller shall deliver to the Purchaser, the Trustee or their designee by such
date an additional Officer's Certificate stating a revised date by which Seller
expects to receive the applicable Recording Documents. This procedure shall be
repeated until the Recording Documents have been received by the Seller and
delivered to the Purchaser, the Trustee or their designee. If the original or
copy of the lender's title insurance policy was not delivered pursuant to
Section 4(b)(vi) above, the Seller shall deliver or cause to be delivered to the
Purchaser, the Trustee or their designee promptly after receipt thereof, and in
any event within 120 days after the Closing Date such title insurance policy.
The Seller shall deliver or cause to be delivered to the Purchaser, the Trustee
or their designee promptly upon receipt thereof any other original documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
Each original document relating to a Mortgage Loan which is not
delivered to the Purchaser, the Trustee or their designee, if held by the
Seller, shall be so held for the benefit of the Purchaser, the Trustee or their
designees. In the event that any such original document is required pursuant to
the terms of this Section to be a part of a Mortgage File, such document shall
be delivered promptly to the Purchaser, the Trustee or their designee. Any such
original document that is not required pursuant to the terms of this Section to
be a part of a Mortgage File shall be held by the Seller in its capacity as
Master Servicer.
(c) Acceptance of Mortgage Loans. The documents delivered
pursuant to Section 4(b) hereof shall be reviewed by the Purchaser or any
assignee, transferee or designee of the Purchaser at any time before, on and
after the Closing Date (and with respect to each document permitted to be
delivered after the Closing Date within seven days of its delivery) to ascertain
that all required documents have been executed and received and that such
documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule.
4
(d) Transfer of Interest in Agreements. The Purchaser has the
right to assign its interest under this Agreement (other than Section 17
hereof), in whole or in part, to the Trustee, as may be required to effect the
purposes of the Pooling and Servicing Agreement, without the consent of the
Seller, and the Trustee shall succeed to the rights and obligations hereunder of
the Purchaser. Any expense reasonably incurred by or on behalf of the Purchaser,
the Trustee, or the NIMS Insurer, if any, in connection with enforcing any
obligations of the Seller under this Agreement will be promptly reimbursed by
the Seller.
(e) Examination of Mortgage Files. Prior to the Closing Date
the Seller shall either (i) deliver in escrow to the Purchaser or to any
assignee, transferee or designee of the Purchaser, for examination, the Mortgage
File pertaining to each Mortgage Loan, or (ii) make such Mortgage Files
available to the Purchaser or to any assignee, transferee or designee of the
Purchaser for examination. Such examination may be made by the Purchaser or the
Trustee, and their respective designees, upon reasonable notice to the Seller
during normal business hours at any time before or after the Closing Date. If
any such person makes such examination prior to the Closing Date and identifies
any Mortgage Loans with respect to which the Seller's representations and
warranties contained in this Agreement are not correct, such Mortgage Loans
shall be deleted from the Mortgage Loan Schedule. The Purchaser may, at its
option and without notice to the Seller, purchase all or part of the Mortgage
Loans without conducting any partial or complete examination. The fact that the
Purchaser or any person has conducted or has failed to conduct any partial or
complete examination of the related Mortgage Files shall not affect the rights
of the Purchaser or any assignee, transferee or designee of the Purchaser to
demand repurchase or other relief as provided herein or under the Pooling and
Servicing Agreement.
SECTION 5. Representations, Warranties and Covenants of the Seller.
The Seller hereby represents and warrants and covenants to the
Purchaser, as of the date hereof and as of the Closing Date:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by the Seller in any state
in which a Mortgaged Property is located or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to ensure its ability to enforce each Mortgage Loan and to
service the Mortgage Loans in accordance with the terms of the Pooling and
Servicing Agreement;
(ii) The Seller had the full corporate power and authority
to originate, hold and sell each Mortgage Loan and has the full corporate
power and authority to service each Mortgage Loan, and to execute, deliver
and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
corporate action on the part of the Seller the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the Purchaser,
5
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except to the
extent that the enforceability thereof may be limited by (a) bankruptcy,
insolvency, moratorium, receivership, conservatorship, arrangement,
moratorium and other similar laws relating to creditors' rights generally
and (b) the general principles of equity, whether such enforcement is
sought in equity or at law;
(iii) The execution and delivery of this Agreement by the
Seller, the servicing of the Mortgage Loans by the Seller under the
Pooling and Servicing Agreement, the consummation of any other of the
transactions herein contemplated, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of the Seller
and does not (A) result in a breach of any term or provision of the
charter or by-laws of the Seller, (B) conflict with, result in a breach,
violation or acceleration of, or result in a default under, the terms of
any other material agreement, instrument or indenture to which the Seller
is a party or by which it may be bound, or any statute, order or
regulation applicable to the Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Seller or any of its property or (C) result in the creation or imposition
of any lien, charge or encumbrance which would have a material adverse
effect upon the Mortgage Loans or any documents or instruments evidencing
or securing the Mortgage Loans; and the Seller is not a party to, bound
by, or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects or, to the Seller's knowledge, would in the future
result in the creation or imposition of any lien, charge or encumbrance
which would have a material adverse effect upon the Mortgage Loans or any
documents or instruments evidencing or securing the Mortgage Loans or
materially and adversely affect (x) the ability of the Seller to perform
its obligations under this Agreement or the Pooling and Servicing
Agreement or (y) the business, operations, financial condition, properties
or assets of the Seller taken as a whole;
(iv) No consent, approval, authorization, or order of, any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the Seller
with, this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is
required, the Seller has obtained the same;
(v) The Seller is an approved seller/servicer for Xxxxxx
Xxx or Xxxxxxx Mac in good standing and is a HUD approved mortgagee
pursuant to Section 203 and Section 211 of the National Housing Act;
(vi) No litigation or proceeding is pending or, to the best
knowledge of the Seller, threatened, against the Seller that would
materially and adversely affect the execution, delivery or enforceability
of this Agreement or the Pooling and Servicing Agreement or the issuance
of the Certificates or the ability of the Seller to service the Mortgage
Loans or to perform any of its other obligations
6
hereunder in accordance with the terms hereof and the terms of the Pooling
and Servicing Agreement or, that would result in a material adverse change
in the financial or operating conditions of the Seller;
(vii) No certificate of an officer, statement or other
information furnished in writing or report delivered by the Seller to the
Purchaser, any Affiliate of the Purchaser or the Trustee for use in
connection with the purchase of the Mortgage Loans and the transactions
contemplated hereunder and under the Pooling and Servicing Agreement
contains any untrue statement of a material fact, or omits a material fact
necessary to make the information, certificate, statement or report not
misleading in any material respect;
(viii) The Seller has not dealt with any broker, investment
banker, agent or other person, except for the Purchaser or any of its
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans;
(ix) Each Mortgage Note, each Mortgage, each Assignment and
any other document required to be delivered by or on behalf of the Seller
under this Agreement or the Pooling and Servicing Agreement to the
Purchaser or any assignee, transferee or designee of the Purchaser for
each Mortgage Loan has been or will be, in accordance with Section 4(b)
hereof, delivered to the Purchaser or any such assignee, transferee or
designee. With respect to each Mortgage Loan, the Seller is in possession
of a complete Mortgage File in compliance with the Pooling and Servicing
Agreement, except for such documents that have been delivered (1) to the
Purchaser or any assignee, transferee or designee of the Purchaser or (2)
for recording to the appropriate public recording office and have not yet
been returned;
(x) The Seller (A) is a solvent entity and is paying its
debts as they become due, (B) immediately after giving effect to the
transfer of the Mortgage Loans, will be a solvent entity and will have
sufficient resources to pay its debts as they become due and (C) did not
sell the Mortgage Loans to the Purchaser with the intent to hinder, delay
or defraud any of its creditors; and
(xi) The transfer of the Mortgage Loans to the Purchaser at
the Closing Date will be treated by the Seller for financial accounting
and reporting purposes as a sale of assets.
SECTION 6. Representations and Warranties of the Seller Relating
to the Individual Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser, that as
of the Closing Date with respect to each Mortgage Loan:
(i) The information set forth on the Mortgage Loan Schedule
with respect to each Mortgage Loan is true and correct in all material
respects as of the Cut-off Date, unless another date is set forth on the
Mortgage Loan Schedule;
7
(ii) [reserved];
(iii) Each Mortgage is a valid and enforceable first or
second lien on the Mortgaged Property, including all improvements thereon,
subject only to (a) the lien of non-delinquent current real property taxes
and assessments, (b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record being
acceptable to mortgage lending institutions generally or specifically
reflected in the appraisal made in connection with the origination of the
related Mortgage Loan and which do not materially interfere with the
benefits of the security intended to be provided by such Mortgage, (c)
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 such Mortgage and (d) in the case of a second lien, only to a
first lien on such Mortgaged Property;
(iv) Immediately prior to the assignment of the Mortgage
Loans to the Purchaser, the Seller had good title to, and was the sole
legal and beneficial owner of, each Mortgage Loan, free and clear of any
pledge, lien, encumbrance or security interest and has full right and
authority, subject to no interest or participation of, or agreement with,
any other party to sell and assign the same. The form of endorsement of
each Mortgage Note satisfied the requirement, if any, of endorsement in
order to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note; and each
Assignment to be delivered hereunder is in recordable form and is
sufficient to effect the assignment of and to transfer to the assignee
thereunder the benefits of the assignor, as mortgagee or assignee thereof,
under each Mortgage to which that Assignment relates;
(v) To the best of the Seller's knowledge, there is no
delinquent tax or assessment lien against any Mortgaged Property;
(vi) There is no valid offset, defense or counterclaim to
any Mortgage Note (including any obligation of the Mortgagor to pay the
unpaid principal of or interest on such Mortgage Note) or the Mortgage,
nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or the 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;
(vii) To the best of the Seller's knowledge, there are no
mechanics' liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with, the
lien of the related Mortgage, except those which are insured against by
the title insurance policy referred to in (xi) below;
8
(viii) To the best of the Seller's knowledge, each Mortgaged
Property is free of material damage and is at least in average repair;
(ix) Each Mortgage Loan at origination complied in all
material respects with applicable local, state and federal laws,
including, without limitation, predatory and abusive lending, usury, equal
credit opportunity, real estate settlement procedures, truth-in-lending
and disclosure laws, and consummation of the transactions contemplated
hereby, including without limitation the receipt of interest does not
involve the violation of any such laws;
(x) Neither the Seller nor any prior holder of any Mortgage
has modified the Mortgage in any material respect, satisfied, canceled or
subordinated such Mortgage in whole or in part; released the related
Mortgaged Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto (except that a Mortgage Loan may have
been modified by a written instrument signed by the Seller or a prior
holder of the Mortgage Loan which has been recorded, if necessary, to
protect the interests of the Seller and the Purchaser and which has been
delivered to the Purchaser or any assignee, transferee or designee of the
Purchaser as part of the Mortgage File, and the terms of which are
reflected in the Mortgage Loan Schedule);
(xi) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
and, with respect to each Adjustable Rate Mortgage Loan, an adjustable
rate mortgage endorsement in an amount at least equal to the balance of
the Mortgage Loan as of the Cut-off Date or a commitment (binder) to issue
the same was effective on the date of the origination of each Mortgage
Loan, each such policy is valid and remains in full force and effect, the
transfer of the related Mortgage Loan to the Purchaser and the Trustee
does not affect the validity or enforceability of such policy and each
such policy was issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located and acceptable to
Xxxxxx Xxx or Xxxxxxx Mac and in a form acceptable to Xxxxxx Mae or
Xxxxxxx Mac on the date of origination of such Mortgage Loan, which policy
insures the Seller and successor owners of indebtedness secured by the
insured Mortgage, as to the first or second, as the case may be, priority
lien of the Mortgage; to the best of the Seller's knowledge, no claims
have been made under such mortgage title insurance policy and no prior
holder of the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such mortgage title
insurance policy;
(xii) Each Mortgage Loan was originated by, or generated on
behalf of, the Seller, or originated by a savings and loan association,
savings bank, commercial bank, credit union, insurance company or similar
institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing
Act;
9
(xiii) With respect to each Adjustable Rate Mortgage Loan, on
each Adjustment Date, the Mortgage Rate will be adjusted to equal the
Index plus the Gross Margin, rounded to the nearest 0.125%, subject to the
Periodic Rate Cap, the Maximum Mortgage Rate and the Minimum Mortgage
Rate. The related Mortgage Note is payable on the first day of each month
in self-amortizing monthly installments of principal and interest (unless
such Mortgage Loan is a mortgage loan that requires the payment of
interest only with respect to some or all of the related monthly payments
as indicated on the Mortgage Loan Schedule), with interest payable in
arrears, and requires a Monthly Payment which is sufficient to fully
amortize the outstanding principal balance of the Mortgage Loan over its
remaining term and to pay interest at the applicable Mortgage Rate. No
Mortgage Loan is subject to negative amortization. All rate adjustments
have been performed in accordance with the terms of the related Mortgage
Note or subsequent modifications, if any;
(xiv) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the Value
of the Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining
properties encroach upon the Mortgaged Property;
(xv) All inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including
but not limited to certificates of occupancy, have been made or obtained
from the appropriate authorities and to the best of the Seller's
knowledge, the Mortgaged Property is lawfully occupied under applicable
law;
(xvi) All parties which have had any interest in the
Mortgage, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were)
in compliance with any and all applicable licensing requirements of the
laws of the state wherein the Mortgaged Property is located;
(xvii) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the Mortgagor
enforceable against the Mortgagor by the mortgagee or its representative
in accordance with its terms, except only as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
by law. To the best of the Seller's knowledge, all parties to the Mortgage
Note and the Mortgage had full legal capacity to execute all Mortgage Loan
documents and to convey the estate purported to be conveyed by the
Mortgage and each Mortgage Note and Mortgage have been duly and validly
executed by such parties;
(xviii) The proceeds of each Mortgage Loan have been fully
disbursed, there is no requirement for future advances thereunder and any
and all
10
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making, closing or recording the
Mortgage Loans were paid;
(xix) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. There is no homestead or other exemption available
to the Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage;
(xx) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in such
Mortgage, and no fees or expenses are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
(xxi) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow
deposits or payments of other charges or payments due the Seller have been
capitalized under the Mortgage or the related Mortgage Note;
(xxii) The origination, underwriting and collection practices
used by the Seller with respect to each Mortgage Loan have been in all
material respects legal, proper, prudent and customary in the subprime
mortgage servicing business. Each Mortgage Loan is currently being
serviced by Washington Mutual Bank;
(xxiii) There is no pledged account or other security other
than real estate securing the Mortgagor's obligations;
(xxiv) No Mortgage Loan has a shared appreciation feature, or
other contingent interest feature;
(xxv) With respect to each Mortgage Loan, the related
Mortgagor shall not fail or has not failed to make the monthly payment due
thereon in August 2005 on or before September 30, 2005;
(xxvi) The improvements upon each Mortgaged Property are
covered by a valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire extended coverage and coverage
of such other hazards as are customarily covered by hazard insurance
policies with extended coverage in the area where the Mortgaged Property
is located representing coverage not less than the lesser of the
outstanding principal balance of the related Mortgage Loan or the minimum
amount required to compensate for damage or loss on a replacement
11
cost basis. All individual insurance policies and flood policies referred
to in this clause (xxvi) and in clause (xxvii) below contain a standard
mortgagee clause naming the Seller or the original mortgagee, and its
successors in interest, as mortgagee, and the Seller has received no
notice that any premiums due and payable thereon have not been paid; the
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance, including flood insurance, at the Mortgagor's cost and expense,
and upon the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from the Mortgagor;
(xxvii) If the Mortgaged Property is in an area identified in
the Federal Register by the Federal Emergency Management Agency as subject
to special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration is in effect with respect to such Mortgaged Property with a
generally acceptable carrier in an amount representing coverage not less
than the least of (A) the original outstanding principal balance of the
Mortgage Loan, (B) the minimum amount required to compensate for damage or
loss on a replacement cost basis or (C) the maximum amount of insurance
that is available under the Flood Disaster Protection Act of 1973;
(xxviii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note; and
neither the Seller nor any other entity involved in originating or
servicing the Mortgage Loan has waived any default, breach, violation or
event of acceleration;
(xxix) Each Mortgaged Property is improved by a one- to
four-family residential dwelling, including condominium units and dwelling
units in planned unit developments, which, to the best of the Seller's
knowledge, does not include cooperatives and does not constitute property
other than real property under state law;
(xxx) There is no obligation on the part of the Seller or any
other party under the terms of the Mortgage or related Mortgage Note to
make payments in addition to those made by the Mortgagor;
(xxxi) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term reflected on the related
Mortgage Loan Schedule. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan;
(xxxii) Each Mortgage Loan was underwritten in accordance with
the Underwriting Guidelines as described in the Prospectus Supplement as
applicable to its credit grade in all material respects (the "Underwriting
Guidelines");
12
(xxxiii) Each appraisal of a Mortgage Loan that was used to
determine the appraised value of the related Mortgaged Property was
conducted generally in accordance with the Underwriting Guidelines, and
included an assessment by the appraiser of the fair market value of the
related Mortgaged Property at the time of the appraisal. The Mortgage File
contains an appraisal of the applicable Mortgaged Property;
(xxxiv) None of the Mortgage Loans is a graduated payment
Mortgage Loan, nor is any Mortgage Loan subject to a temporary buydown or
similar arrangement;
(xxxv) There are no Mortgage Loans with respect to which the
monthly payment due thereon in June, 2005 had not been made, none of the
Mortgage Loans has been contractually delinquent for more than 30 days
more than once during the preceding twelve months and, no Mortgage Loan
has ever experienced a delinquency of 60 or more days since the
origination thereof;
(xxxvi) Each Mortgage contains a provision that is, to the
extent not prohibited by federal or state law, enforceable for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee thereunder;
(xxxvii) To the best of the Seller's knowledge no
misrepresentation, negligence, fraud or similar occurrence with respect to
a Mortgage Loan has taken place on the part of any person, including,
without limitation, the Mortgagor, any appraiser, any builder or
developer, or any other party involved in the origination of the Mortgage
Loan or in the application of any insurance in relation to such Mortgage
Loan;
(xxxviii) Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code;
(xxxix) The information set forth in the Prepayment Charge
Schedule is complete, true and correct in all material respects at the
date or dates respecting which such information is furnished and each
Prepayment Charge is permissible and enforceable in accordance with its
terms under applicable law upon the Mortgagor's voluntary Principal
Prepayment (except to the extent that: (1) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally; or (2) the
collectability thereof may be limited due to acceleration in connection
with a foreclosure or other involuntary prepayment). No Mortgage Loan
originated before October 1, 2002 has a Prepayment Charge for a term in
excess of five years from the date of its origination and no Mortgage Loan
originated on or after October 1, 2002 has a prepayment charge for a term
in excess of three years from the date of its origination;
13
(xl) The Loan-to-Value Ratio for each Mortgage Loan was no
greater than 100% at the time of origination;
(xli) The first date on which each Mortgagor must make a
payment on the related Mortgage Note is no later than 60 days from the
date of this Agreement;
(xlii) With respect to each Mortgage Loan, the related
Mortgagor shall not fail or has not failed to make the first monthly
payment due under the terms of the Mortgage Loan by the second succeeding
Due Date after the Due Date on which such Monthly Payment was due;
(xliii) The transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Seller pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory provisions in effect
in any relevant jurisdiction, except any as may have been complied with;
(xliv) There are no defaults in complying with the terms of
the Mortgage, and either (1) any taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges or ground rents
which previously became due and owing have been paid, or (2) an escrow of
funds has been established in an amount sufficient to pay for every such
item which remains unpaid and which has been assessed but is not yet due
and payable. Except for payments in the nature of escrow payments,
including without limitation, taxes and insurance payments, the Seller has
not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required by the Mortgage Note,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage proceeds, whichever is greater, to the day
which precedes by one month the Due Date of the first installment of
principal and interest;
(xlv) There is no proceeding pending, or to best of the
Seller's knowledge threatened, for the total or partial condemnation of
the Mortgaged Property or the taking by eminent domain of any Mortgaged
Property;
(xlvi) No Mortgage Loan is subject to the requirements of the
Home Ownership and Equity Protection Act of 1994, as amended, or is a
"high cost" or "predatory" loan under any state or local law or regulation
applicable to the originator of such Mortgage Loan or which would result
in liability to the purchaser or assignee of such Mortgage Loan under any
predatory or abusive lending law. In the event that Financial Security
Assurance, Inc. becomes a NIMS Insurer, no Mortgage Loan is a "covered"
loan under the laws of the states of California, Colorado or Ohio;
(xlvii) No proceeds from any Mortgage Loans were used to
finance single-premium credit insurance policies. No borrower was required
to purchase any credit life, disability, accident or health insurance
product as a condition of
14
obtaining the extension of credit. No borrower obtained a prepaid
single-premium credit life, disability, accident or health insurance
policy in connection with the origination of the Mortgage Loan;
(xlviii) The Seller did not select the Mortgage Loans with the
intent to adversely affect the interests of the Purchaser;
(xlix) The Seller has not received any notice that any
Mortgagor has filed for any bankruptcy or similar legal protection since
the date of the origination of such Mortgage Loan. Prior to the date of
the origination of any Mortgage Loan, the Seller did not receive any
notice that any Mortgagor has filed for bankruptcy or similar legal
protection except as permitted under the Underwriting Guidelines;
(l) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High-Cost Home Loan" as defined in the Georgia Fair Lending Act, as
amended (the "Georgia Act"), and no Mortgage Loan that was originated on
or after October 1, 2002 and before March 7, 2003, is secured by a
Mortgaged Property located in the State of Georgia;
(li) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High Cost Home Loan" as defined in the Kentucky high-cost loan statute
effective June 24, 2003 (Ky. Rev. Stat. Section 360.100);
(lii) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High Cost Home Loan" as defined in the New Jersey Home Ownership Act
effective November 27, 2003 (N.J.S.A. 46; 10B-22 et seq.);
(liii) No Group I Mortgage Loan or Group II Mortgage Loan is a
subsection 10 mortgage under the Oklahoma Home Ownership and Equity
Protection Act;
(liv) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High-Cost Home Loan" as defined in New York Banking Law 6-1;
(lv) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High Cost Home Loan" as defined in the Arkansas Home Loan Protection Act
effective July 16, 2003 (Act 1340 of 2003);
(lvi) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High-Cost Home Loan" as defined in the New Mexico Home Loan Protection
Act effective January 1, 2004 (N.M. Stat. Am. 'SS''SS' 58-21A-1 et seq.);
(lvii) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High-Risk Home Loan" as defined in the Illinois High-Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.);
15
(lviii) Each Group I Mortgage Loan and Group II Mortgage Loan
was originated in compliance with the following anti-predatory lending
guidelines:
a. Each Group I Mortgage Loan and Group II Mortgage Loan
satisfies the eligibility for purchase requirements and was originated in
compliance with Lender Letter # LL03-00 dated April 11, 2000 for Xxxxxx
Xxx Xxxxxxx (the "Lender Letter");
b. No borrower was encouraged or required by the Seller to
select a Group I Mortgage Loan product or a Group II Mortgage Loan product
offered by the Group I Mortgage Loan's originator or the Group II Mortgage
Loan's originator, as applicable, which is a higher cost product designed
for less creditworthy borrowers, unless at the time of the Group I
Mortgage Loan's origination or the Group II Mortgage Loan's origination,
such borrower did not qualify taking into account credit history and
debt-to-income ratios for a lower-cost credit product then offered by the
Group I Mortgage Loan's originator or the Group II Mortgage Loan's
originator, as applicable, or any affiliate of the Group I Mortgage Loan's
originator or the Group II Mortgage Loan's originator, as applicable;
c. The methodology used in underwriting the extension of
credit for each Group I Mortgage Loan and Group II Mortgage Loan employs
objective mathematical principles which relate the borrower's income,
assets and liabilities to the proposed payment and such underwriting
methodology does not rely on the extent of the borrower's equity in the
collateral as the principal determining factor in approving such credit
extension. Such underwriting methodology provided reasonable assurance
that at the time of origination (application/approval) the borrower had a
reasonable ability to make timely payments on the Group I Mortgage Loan or
the Group II Mortgage Loan, as applicable;
d. With respect to any Group I Mortgage Loan or Group II
Mortgage Loan that contains a provision permitting imposition of a premium
upon a prepayment prior to maturity, (i) the Seller's pricing methods
include mortgage loans with and without prepayment premiums; borrowers
selecting Group I Mortgage Loans or Group II Mortgage Loans which include
such prepayment premiums receive a monetary benefit, including but not
limited to a rate or fee reduction, in exchange for selecting a Group I
Mortgage Loan or Group II Mortgage Loan with a prepayment premium, (ii)
prior to the Group I Mortgage Loan's origination or the Group II Mortgage
Loan's origination, the borrower had the opportunity to choose between an
array of mortgage loan products which included mortgage loan products with
prepayment premiums and mortgage loan products that did not require
payment of such a premium, (iii) the prepayment premium is disclosed to
the borrower in the loan documents pursuant to applicable state and
federal law, and (iv) notwithstanding any state or federal law to the
contrary, the Master Servicer shall not impose such prepayment premium in
any instance when the mortgage debt is accelerated as the result of the
borrower's default in making the loan payments;
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e. All points and fees related to each Group I Mortgage
Loan and Group II Mortgage Loan were disclosed in writing to the borrower
in accordance with applicable state and federal law. Except in the case of
a Group I Mortgage Loan or a Group II Mortgage Loan in an original
principal amount of less than $60,000 which would have resulted in an
unprofitable origination, no borrower was charged "points and fees"
(whether or not financed) in an amount greater than 5% of the principal
amount of such loan, such 5% limitation calculated in accordance with the
Lender Letter;
f. All fees and charges (including finance charges) and
whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Group I Mortgage
Loan and Group II Mortgage Loan have been disclosed in writing to the
borrower in accordance with applicable state and federal law and
regulation;
(lix) No Group I Mortgage Loan or Group II Mortgage Loan had
a principal balance at origination in excess of Xxxxxx Mae's conforming
loan balance limitations for single family loans set forth in the Xxxxxx
Xxx Charter Act and the Xxxxxx Mae Selling Guide in effect at the time of
such Group I Mortgage Loan's origination or Group II Mortgage Loan's
origination;
(lx) With respect to each Group I Mortgage Loan and Group II
Mortgage Loan, information regarding the borrower credit file related to
such Mortgage Loan has been furnished to credit reporting agencies in
compliance with the provisions of the Fair Credit Reporting Act and the
applicable implementing regulations;
(lxi) No Mortgage Loan is a "High Cost Loan" or
"Covered Loan" (as such terms are defined in the Standard & Poor's
LEVELS'r' Glossary in effect on the Closing Date which is now Version 5.6c
Revised, Exhibit E, applicable portions of which are attached hereto as
Exhibit A) and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Act;
(lxii) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High Cost Home Mortgage Loan" as defined in the Massachusetts Predatory
Home Loan Practices Act effective November 7, 2004 (Mass. Xxx. Laws ch.
183C);
(lxiii) No Group I Mortgage Loan or Group II Mortgage Loan is a
"High Cost Home Loan" as defined in the Indiana Home Loan Practices Act
effective January 1, 2005 (Ind. Code Xxx. 'SS''SS' 24-9-1 through 24-9-9);
and
(lxiv) With respect to any Group I Mortgage Loan or Group II
Mortgage Loan originated on or after August 1, 2004, neither the related
Mortgage nor the related Mortgage Note requires the Mortgagor to submit to
arbitration to resolve any dispute arising out of or relating in any way
to the Mortgage Loan transaction.
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SECTION 7. Repurchase Obligation for Defective Documentation and
for Breach of Representation and Warranty.
(a) The representations and warranties contained in Section 5(ix)
and Section 6 shall not be impaired by any review and examination of loan files
or other documents evidencing or relating to the Mortgage Loans or any failure
on the part of the Seller or the Purchaser to review or examine such documents
and shall inure to the benefit of any assignee, transferee or designee of the
Purchaser, including the Trustee for the benefit of holders of asset-backed
certificates evidencing an interest in all or a portion of the Mortgage Loans.
With respect to the representations and warranties contained herein which are
made to the knowledge or the best of knowledge of the Seller, or as to which the
Seller has no knowledge, if it is discovered that the substance of any such
representation and warranty was inaccurate as of the date such representation
and warranty was made or deemed to be made, and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan or the interest therein
of the Purchaser or the Purchaser's assignee, transferee or designee, then
notwithstanding the lack of knowledge by the Seller with respect to the
substance of such representation and warranty being inaccurate at the time the
representation and warranty was made, the Seller shall take such action
described in the following paragraph in respect of such Mortgage Loan.
Upon discovery by the Seller, the Purchaser or any assignee,
transferee or designee of the Purchaser of any materially defective document in,
or that any material document was not transferred by the Seller (as listed on
the Trustee's initial certification), as part of any Mortgage File or of a
breach of any of the representations and warranties contained in Section 5 or
Section 6 that materially and adversely affects the value of any Mortgage Loan
or the interest of the Purchaser or the Purchaser's assignee, transferee or
designee (it being understood that with respect to the representations and
warranties set forth in the last sentence of (xxxix), (xlvi), the first sentence
of (xlvii), (lxi) and (lxiv) of Section 6 herein, a breach of any such
representation or warranty shall in and of itself be deemed to materially and
adversely affect the interest therein of the Purchaser and the Purchaser's
assignee, transferee or designee) in any Mortgage Loan, the party discovering
the breach shall give prompt written notice to the others. Within ninety (90)
days of the earlier of the discovery or the Seller's receipt of notice of any
such missing documentation which was not transferred to the Purchaser as
described above or materially defective documentation or any such breach of a
representation and warranty, the Seller promptly shall deliver such missing
document or cure such defect or breach in all material respects, or in the event
the Seller cannot deliver such missing document or such defect or breach cannot
be cured, the Seller shall, within 90 days of its discovery or receipt of
notice, either (i) repurchase the affected Mortgage Loan at a price equal to the
Purchase Price (as defined in the Pooling and Servicing Agreement) or (ii)
pursuant to the provisions of the Pooling and Servicing Agreement, cause the
removal of such Mortgage Loan from the Trust Fund and substitute one or more
Qualified Substitute Mortgage Loans (it being understood that in the case of a
breach of the representation and warranty set forth in (xxv), the Seller shall
be required to repurchase any such Mortgage Loan); provided, however, that in
the case of a breach of the representation and warranty concerning the Mortgage
Loan Schedule contained in Section 6(i), if such breach relates to any field on
the Mortgage Loan Schedule which identifies any Prepayment Charge and such
Prepayment Charge has been triggered pursuant to the terms of the related
Mortgage Note, then in lieu of purchasing such Mortgage Loan from the Trust Fund
at the Purchase Price (as defined in the Pooling and Servicing
18
Agreement), the Seller shall pay the amount of the incorrectly identified
Prepayment Charge (net of any amount previously collected by or paid to the
Trust Fund in respect of such Prepayment Charge), and the Seller shall have no
obligation to repurchase or substitute for such Mortgage Loan. In the event of a
substitution permitted hereunder, the Seller shall amend the Closing Schedule to
reflect the withdrawal of each removed Mortgage Loan from the terms of this
Agreement and the Pooling and Servicing Agreement and the addition of the
Qualified Substitute Mortgage Loan(s). The Seller shall deliver to the Purchaser
such amended Closing Schedule and shall deliver such other documents as are
required by this Agreement or the Pooling and Servicing Agreement within five
(5) days of any such amendment. Any repurchase pursuant to this Section 7(a)
shall be accomplished by deposit in the Collection Account of the amount of the
Purchase Price (as defined in the Pooling and Servicing Agreement) in accordance
with Section 2.03 of the Pooling and Servicing Agreement. Any repurchase or
substitution required by this Section shall be made in a manner consistent with
Section 2.03 of the Pooling and Servicing Agreement and any remedy by the Seller
for a breach of a representation or warranty that materially and adversely
affects the value of any Prepayment Charge shall be made in a manner consistent
with Section 2.03(c) of the Pooling and Servicing Agreement.
(b) It is understood and agreed that the obligations of the Seller
set forth in this Section 7 to cure, repurchase or substitute for a defective
Mortgage Loan constitute the sole remedies of the Purchaser against the Seller
respecting a missing or defective document or a breach of the representations
and warranties contained in Section 5 or Section 6.
SECTION 8. Closing; Payment for the Mortgage Loans.
The closing of the purchase and sale of the Mortgage Loans shall be
held at the Seattle office of Xxxxxx Xxxxxx LLP at 9:30 am New York time on the
Closing Date (or such other location or time as is mutually agreeable to the
parties).
The Purchaser's obligation to close the transactions contemplated by
this Agreement shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller under
this Agreement shall be true and correct in all material respects as of the date
as of which they are made and no event shall have occurred which, with notice or
the passage of time, would constitute a default under this Agreement;
(b) The Purchaser shall have received, or the attorneys of the
Purchaser shall have received in escrow (to be released from escrow at the time
of closing), all Closing Documents as specified in Section 9 of this Agreement,
in such forms as are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required pursuant to the
respective terms thereof;
(c) The Seller shall have delivered or caused to be delivered and
released to the Purchaser or to its designee, all documents (including without
limitation, the Mortgage Loans) required to be so delivered by the Purchaser
pursuant to Section 2.01 of the Pooling and Servicing Agreement; and
19
(d) All other terms and conditions of this Agreement to be
complied with by Seller, shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall deliver or
cause to be delivered to the Seller on the Closing Date, against delivery and
release by the Seller to the Trustee of all documents required pursuant to the
Pooling and Servicing Agreement, the consideration for the Mortgage Loans as
specified in Section 3 of this Agreement, by delivery to the Seller of the
Purchase Price and Securitization Fee in immediately available funds and
delivery of the Long Beach Certificates to the Seller or, upon the direction of
the Seller, to Long Beach Asset Holdings Corp. or another entity.
SECTION 9. Closing Documents.
Without limiting the generality of Section 8 hereof, the closing
shall be subject to delivery of each of the following documents:
(a) An Officers' Certificate of the Seller, dated the Closing
Date, upon which the Purchaser, Credit Suisse First Boston LLC and WaMu Capital
Corp. (the "Underwriters") and the NIMS Insurer, if any, may rely and attached
thereto copies of the certificate of incorporation, bylaws and certificate of
good standing of the Seller under the laws of the State of Delaware;
(b) An Officers' Certificate of the Seller, dated the Closing
Date, upon which the Purchaser, the Underwriters and the NIMS Insurer, if any,
may rely, with respect to certain facts regarding the sale of the Mortgage
Loans, by the Seller to the Purchaser;
(c) An Opinion of Counsel of the Seller (which may be in-house
counsel of the Seller), dated the Closing Date and addressed to the Purchaser,
the Underwriters and the NIMS Insurer, if any;
(d) Such opinions of counsel as the Rating Agencies, the
Underwriters, the Trustee or the NIMS Insurer, if any, may reasonably request in
connection with the sale of the Mortgage Loans by the Seller to the Purchaser or
the Seller's execution and delivery of, or performance under, this Agreement;
(e) A letter from Deloitte & Touche L.L.P., certified public
accountants, dated the date hereof and to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Prospectus Supplement under the captions "Summary of Terms--Mortgage Loans",
"Risk Factors", "The Mortgage Pool" and "Long Beach Mortgage Company" agrees
with the records of the Seller;
(f) The Seller shall deliver to the Purchaser for inclusion in the
Prospectus Supplement under the caption "Long Beach Mortgage Company" or for
inclusion in other offering materials, such publicly available information
regarding the Seller, its financial condition and its mortgage loan delinquency,
foreclosure and loss experience, underwriting standards, lending activities and
loan sales, production, and servicing and collection practices,
20
and any similar nonpublic, unaudited financial information and a computer tape
with respect to the pool information, as the Underwriters may reasonably
request;
(g) Letters from at least two nationally recognized statistical
rating agencies rating the Offered Certificates (as defined in the Prospectus
Supplement) and a letter from at least one nationally recognized statistical
rating agency rating the Class B Certificates; and
(h) Such further information, certificates, opinions and documents
as the Purchaser or the Underwriters may reasonably request.
SECTION 10. Costs.
The Seller shall pay (or shall reimburse the Purchaser or any other
Person to the extent that the Purchaser or such other Person shall pay) all
costs and expenses incurred in connection with the transfer and delivery of the
Mortgage Loans, including without limitation, recording fees, fees for title
policy endorsements and continuations and the fees for recording Assignments,
the fees and expenses of the Seller's in-house accountants and in-house
attorneys; the costs and expenses incurred in connection with determining the
Seller's loan loss, foreclosure and delinquency experience, the costs and
expenses incurred in connection with obtaining the documents referred to in
Sections 9(d) and 9(e), the cost of an opinion of counsel regarding the true
sale of the Mortgage Loans and non-consolidation of the Seller, the costs and
expenses of printing (or otherwise reproducing) and delivering this Agreement,
the Pooling and Servicing Agreement, the Certificates, the prospectus, the
Prospectus Supplement, any blue sky filings and private placement memorandum
relating to the Certificates and other related documents, costs and expenses of
the Trustee, the fees and expenses of the Purchaser's counsel in connection with
the preparation of all documents relating to the securitization of the Mortgage
Loans, the filing fee charged by the Securities and Exchange Commission for
registration of the Certificates, the cost of any opinions of outside special
counsel that may be required for the Seller and the fees charged by any Rating
Agency to rate the Certificates. All other costs and expenses in connection with
the transactions contemplated hereunder shall be borne by the party incurring
such expense.
SECTION 11. Servicing.
The Seller has represented to the Purchaser that the Mortgage Loans
are being serviced in accordance with the terms of the Pooling and Servicing
Agreement, and it is understood and agreed by and between the Seller and the
Purchaser that any interim servicing arrangements with the Seller will be
superseded by the servicing arrangements set forth in the Pooling and Servicing
Agreement.
SECTION 12. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the Closing Date of the Mortgage Loans in
accordance with the terms and conditions of this Agreement is mandatory. It is
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the Closing Date and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and
21
damages incurred by the Purchaser in the event of the Seller's failure to
deliver the Mortgage Loans on or before the Closing Date.
The Seller hereby grants to the Purchaser a lien on and a continuing
security interest in the Seller's interest in each Mortgage Loan, and each
document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligation hereunder, and the Seller agrees
that it holds such Mortgage Loans in custody for the Purchaser, subject to (i)
the Purchaser's right, prior to the Closing Date, to reject any Mortgage Loan to
the extent permitted by this Agreement and (ii) the Purchaser's obligation to
deliver or cause to be delivered the consideration for the Mortgage Loans
pursuant to Section 8 hereof. Any Mortgage Loan rejected by the Purchaser shall
concurrently therewith be automatically released from the security interest
created hereby. The Seller agrees that, upon acceptance of the Mortgage Loans by
the Purchaser or its designee and delivery of payment to the Seller, that any
security interest held by the Seller in such Mortgage Loans shall be released.
All rights and remedies of the Purchaser under this Agreement are
distinct from, and cumulative with, any other rights or remedies under this
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively. Notwithstanding the
foregoing, if on the Closing Date, each of the conditions set forth in Section 8
hereof shall have been satisfied and the Purchaser shall not have paid or caused
to be paid the Purchase Price, or shall not have delivered or caused to be
delivered the Long Beach Certificates to the Seller or, upon the direction of
the Seller, to Long Beach Asset Holding Corp., or any such condition shall not
have been waived or satisfied and the Purchaser determines not to pay or cause
to be paid the Purchase Price or not to deliver or cause to be delivered the
Long Beach Certificates to Long Beach Asset Holding Corp., the Purchaser shall
immediately effect the re-delivery of the Mortgage Loans, if delivery to the
Purchaser has occurred and any security interest created by this Section 12
shall be deemed to have been released.
SECTION 13. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed by registered mail, postage prepaid, or transmitted by telex or
telegraph and confirmed by a similar mailed writing, if to the Purchaser,
addressed to the Purchaser at 0000 Xxxxx Xxx., XXX0000, Xxxxxxx, Xxxxxxxxxx
00000, Attn: LBSC Legal Counsel, or such other address as may hereafter be
furnished to the Seller in writing by the Purchaser; if to the Seller, addressed
to the Seller at 0000 Xxxxx Xxx., XXX0000, Xxxxxxx, Xxxxxxxxxx 00000, Attn: LBMC
Legal Counsel, or to such other address as the Seller may designate in writing
to the Purchaser.
SECTION 14. Severability of Provisions.
Any part, provision, representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. To the extent permitted by applicable law, the
22
parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Agreement of Parties.
The Seller and the Purchaser each agree to execute and deliver such
instruments (including UCC financing statements and continuation statements) and
take such actions as either of the others may, from time to time, reasonably
request in order to effectuate the purpose and to carry out the terms of this
Agreement and the Pooling and Servicing Agreement.
SECTION 16. Survival.
The Seller agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the Purchaser and
its successors and assigns, notwithstanding any investigation heretofore or
hereafter made by the Purchaser or on its behalf, and that the representations,
warranties and agreements made by the Seller herein or in any such certificate
or other instrument shall survive the delivery of and payment for the Mortgage
Loans and shall continue in full force and effect, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes and notwithstanding
subsequent termination of this Agreement, the Pooling and Servicing Agreement or
the Trust Fund.
SECTION 17. Indemnification, Representative.
(a) The Seller indemnifies and holds harmless the Purchaser, the
Purchaser's officers and directors and each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act of 1933, as
amended (the "1933 Act") or Section 20 of the Exchange Act of 1934, as amended,
(the "Exchange Act"), as follows:
(i) against any and all losses, claims, expenses, damages
or liabilities, joint or several, to which the Purchaser or such
controlling person may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof), including, but not limited to, any loss, claim, expense,
damage or liability related to purchases and sales of the Class A
Certificates, the Mezzanine Certificates and the Class B Certificates
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus Supplement, in
the case of purchases and sales of the Class A Certificates and the
Mezzanine Certificates, or the Private Placement Memorandum relating to
the Class B Certificates dated August 26, 2005 (the "Private Placement
Memorandum"), in the case of purchases and sales of the Class B
Certificates, or any amendment or supplement thereto, or arise out of, or
are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements made therein not misleading; and will reimburse, as incurred,
the Purchaser and each such controlling person for any legal or other
expenses reasonably incurred by the Purchaser or such controlling person
in connection with investigating, defending against or appearing as a
third party witness in connection with any such loss, claim, damage,
liability or
23
action as such expenses are incurred; provided, however, that the Seller
will be liable in any such case only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or omission, or alleged untrue statement or omission, made
therein in reliance upon and in conformity with written information
furnished to the Purchaser by the Seller specifically for use in the
preparation thereof (the "Seller's Information");
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Seller; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by the Purchaser, subject to
Section 17(c) below), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under clause (i) or clause (ii) above.
This indemnity agreement will be in addition to any liability which
the Seller may otherwise have.
(b) The Purchaser agrees to indemnify and hold harmless the
Seller, each of its directors, each of its officers and each person, if any, who
controls the Seller within the meaning of Section 15 of the 1933 Act or Section
20 of the Exchange Act, against any and all losses, claims, expenses, damages or
liabilities to which the Seller or any such director, officer or controlling
person may become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus Supplement, in the case of purchases
and sales of the Class A Certificates and the Mezzanine Certificates, or the
Private Placement Memorandum, in the case of purchases and sales of the Class B
Certificates, other than in the Seller's Information, or arise out of, or are
based upon, the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements made
therein not misleading, and will reimburse any legal or other expenses
reasonably incurred by the Seller or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 17 of notice of the commencement of any action described therein, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 17, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability that it may have to
24
any indemnified party under this Section 17 unless the indemnifying party is
materially prejudiced by such omission to notify and in any event the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to the indemnified party otherwise than under this Agreement. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and, to the extent that it may wish to do so,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party (such consent not to be
unreasonably withheld, conditioned or delayed), be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
under this Section 17, such indemnifying party shall not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and
preparation for a defense.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has failed to assume the defense of such action and employ counsel
reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing (i) by the Seller if the indemnified parties
under this Section 17 consist of the Seller or any of its officers, directors or
controlling persons, or (ii) the Purchaser, if the indemnified party under this
Section 17 consist of the Purchaser or any of the Purchaser's directors,
officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 17(a) and Section 17(b), shall use its reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld, conditioned or delayed), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability (to the extent set forth in Section
17(a) or Section 17(b) as applicable) by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of
25
the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject of such action and (ii) does
not include a statement as to, or an admission of, fault, culpability or failure
to act by or on behalf of an indemnified party.
Notwithstanding the foregoing paragraph, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in Section 17(a) or 17(b)
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Purchaser on the one hand and the Seller on the other from the offering of
the Class A Certificates, the Mezzanine Certificates and the Class B
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Purchaser on the one hand and the Seller on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. If the
indemnification provided for in Section 17(b) is unavailable or insufficient to
hold harmless the indemnified party under Section 17(b), then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in Section
17(b) in such proportion as appropriate to reflect the relative fault of the
Purchaser on one hand and the Seller on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Purchaser on the one hand and the Seller on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Purchaser bear to the total
underwriting discounts and commissions received by the Underwriters (as defined
in the Prospectus Supplement) and the total placement fees received by the
Initial Purchaser (as defined in the Private Placement Memorandum). The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Purchaser or by the Seller and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to above in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). No person
guilty of fraudulent
26
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 18. [RESERVED]
SECTION 19. Governing Law.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 20. Miscellaneous.
This Agreement may be executed in two or more counterparts, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans by the Seller to the Purchaser as provided in Section 4
hereof be, and be construed as, a sale of the Mortgage Loans by the Seller to
the Purchaser and not as a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are held to be property of the Seller, then, (a) it is the
express intent of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller and (b) (1) 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; (2) the conveyance provided for in Section 4 hereof
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller'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 Collection Account whether
in the form of cash, instruments, securities or other property; (3) the
possession by the Purchaser or its agent of the Mortgage Notes, the related
Mortgages and such other items of property that constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the New York
27
Uniform Commercial Code; and (4) 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 Purchaser for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to
Section 4(d) hereof shall also be deemed to be an assignment of any security
interest created hereby. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement.
SECTION 21. Third Party Beneficiary.
Each of the Trustee and the NIMS Insurer, if any, shall be a
third-party beneficiary hereof (except with respect to Section 17) and shall be
entitled to enforce the provisions hereof as if a party hereto, except the
provisions of Section 17 hereof. The Underwriters and the Initial Purchasers,
shall be third-party beneficiaries hereof solely with respect to Section 17 and
shall be entitled to enforce the provisions of Section 17 as if it were a party
hereto.
28
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed by their respective officers thereunto duly authorized as of
the date first above written.
LONG BEACH SECURITIES CORP.
By: __________________________
Name: Xxxxx Xxxx
Title: Authorized Officer
LONG BEACH MORTGAGE COMPANY
By: __________________________
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
EXHIBIT A TO MORTGAGE LOAN PURCHASE AGREEMENT
STANDARD & POOR'S LEVELS'r' GLOSSARY in effect on the CLOSING DATE
As of August 30, 2005 (UPDATE AS OF THE CLOSING DATE)
APPENDIX E TO GLOSSARY FOR FILE FORMAT FOR LEVELS'r' VERSION 5.6c: Standard &
Poor's Anti-Predatory Lending Categorization
REVISED July 11, 2005
Standard & Poor's has categorized loans governed by anti-predatory lending laws
in the Jurisdictions listed below into three categories based upon a combination
of factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor's High Cost Loan Category because they included thresholds and
tests that are typical of what is generally considered High Cost by the
industry.
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
------------------------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection Act, High Cost Home Loan
Ark. Code Xxx. 'SS''SS' 00-00-000 et seq.
Effective July 16, 2003
------------------------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code 'SS''SS' 757.01 et seq.
Effective June 2, 2003
------------------------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx. 'SS''SS' 5-3.5-101 et seq.
Effective for covered loans offered or
entered into on or after January 1,
2003. Other provisions of the Act took
effect on June 7, 2002
------------------------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat. 'SS''SS' 36a-746 et seq.
Effective October 1, 2001
------------------------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Code Covered Loan
'SS''SS' 26-1151.01 et seq.
Effective for loans closed on or after
January 28, 2003
------------------------------------------------------------------------------------------------
A-1
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
------------------------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. 'SS''SS' High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code High Cost Home Loan
Mar. 6, 2003) Xxx. 'SS''SS' 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
------------------------------------------------------------------------------------------------
Georgia as amended Georgia Fair Lending Act, Ga. Code High Cost Home Loan
(Mar. 7, 2003 - current) Xxx. 'SS''SS' 7-6A-1 et seq.
Effective for loans closed on or after
March 7, 2003
------------------------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity Protection High Cost Loan
Act of 1994, 15 U.S.C. 'SS' 1639, 12
C.F.R. 'SS''SS' 226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. Comp. High Risk Home Loan
Stat. tit. 815, 'SS''SS' 137/5 et seq.
Effective January 1, 2004 (prior to this
date, regulations under Residential
Mortgage License Act effective from
May 14, 2001)
------------------------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value
'SS''SS' 16a-1-101 et seq. Consumer Loan (id.
'SS' 16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 ----------------------
became effective April 14, 1999; High APR Consumer
Section 16a-3-308a became effective Loan (id. 'SS'
July 1, 1999 16a-3-308a)
------------------------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. 'SS''SS' 360.100 et
seq.
Effective June 24, 2003
------------------------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9- High Rate High Fee
A, 'SS''SS' 8-101 et seq. Mortgage
Effective September 29, 1995 and as
amended from time to time
------------------------------------------------------------------------------------------------
A-2
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
------------------------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. 'SS''SS' High Cost Home Loan
32.00 et seq. and 209 C.M.R. 'SS''SS' 40.01
et seq.
Effective March 22, 2001 and amended
from time to time
------------------------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. Home Loan
'SS''SS' 598D.010 et seq.
Effective October 1, 2003
------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security High Cost Home Loan
Act of 2002, N.J. Rev. Stat. 'SS''SS' 46:10B-
22 et seq.
Effective for loans closed on or after
November 27, 2003
------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. High Cost Home Loan
Stat. 'SS''SS' 58-21A-1 et seq.
Effective as of January 1, 2004; Revised
as of February 26, 2004
------------------------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6- l High Cost Home Loan
Effective for applications made on or
after April 1, 2003
------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High High Cost Home Loan
Cost Home Loans, N.C. Gen. Stat. 'SS''SS'
24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
------------------------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various sections Covered Loan
of the Ohio Code), Ohio Rev. Code
Xxx. 'SS''SS' 1349.25 et seq.
Effective May 24, 2002
------------------------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10 Mortgage
various sections of Title 14A)
Effective July 1, 2000; amended
effective January 1, 2004
------------------------------------------------------------------------------------------------
A-3
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C. Code
Xxx. 'SS''SS' 37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
------------------------------------------------------------------------------------------------
West Virginia West Virginia Residential Mortgage West Virginia Mortgage
Lender, Broker and Servicer Act, W. Loan Act Loan
Va. Code Xxx. 'SS''SS' 31-17-1 et seq.
Effective June 5, 2002
------------------------------------------------------------------------------------------------
STANDARD & POOR'S COVERED LOAN CATEGORIZATION
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Covered Loan
Mar. 6, 2003) Xxx. 'SS''SS' 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Covered Home Loan
Act of 2002, N.J. Rev. Stat. 'SS''SS'
46:10B-22 et seq.
Effective November 27, 2003 - July 5,
2004
------------------------------------------------------------------------------------------------
A-4
EXHIBIT D
MORTGAGE LOAN SCHEDULE
Copies of the Mortgage Loan Schedule (which has been intentionally omitted from
this filing) may be obtained from Long Beach Securities Corp. by contacting:
Xxxxx Xxxx
Xxxx Beach Securities Corp.
0000 Xxxxx Xxxxxx, XXX0000
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-1
EXHIBIT E-1
REQUEST FOR RELEASE
(for Trustee /Custodian)
Loan Information
Name of Mortgagor: _________________________________________
Master Servicer
Loan No.: _________________________________________
Trustee /Custodian
Name: _________________________________________
Address: _________________________________________
Trustee/
Custodian
Mortgage File No.: _________________________________________
Depositor
Name: LONG BEACH SECURITIES CORP.
Address: _________________________________________
Certificates: Long Beach Mortgage Certificates, Series 2005-WL2.
E-1
The undersigned Master Servicer hereby acknowledges that it has received
from _______________________, as Trustee for the Holders of Long Beach Mortgage
Loan Trust 2005-WL2, Asset-Backed Certificates, Series 2005-WL2, the documents
referred to below (the "Documents"). All capitalized terms not otherwise defined
in this Request for Release shall have the meanings given them in the Pooling
and Servicing Agreement, dated as of August 1, 2005, among the Trustee, the
Depositor and the Master Servicer (the "Pooling and Servicing Agreement").
(a) Promissory Note dated _______________, 20__, in the original principal sum
of $__________, made by ___________________, payable to, or endorsed to the
order of, the Trustee.
(b) Mortgage recorded on _____________________ as instrument no. _____________
in the County Recorder's Office of the County of _________________, State of
____________ in book/reel/docket _________________ of official records at
page/image _____________.
(c) Deed of Trust recorded on ___________________ as instrument no. __________
in the County Recorder's Office of the County of _________________, State of
____________________ in book/reel/docket ________________ of official records at
page/image ____________.
(d) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_________________ as instrument no. ____________ in the County Recorder's Office
of the County of _______________, State of _______________________ in
book/reel/docket ______________ of official records at page/image _____________.
(e) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
(f) _____________________________________________
(g) _____________________________________________
(h) _____________________________________________
(i) _____________________________________________
The undersigned Master Servicer hereby acknowledges and agrees as follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) The Master Servicer shall not cause or permit the Documents to
become subject to, or encumbered by, any claim, liens, security interest,
charges, writs of attachment or other impositions nor shall the Master Servicer
assert or seek to assert any claims or rights of setoff to or against the
Documents or any proceeds thereof.
E-2
(3) The Master Servicer shall return each and every Document previously
requested from the Mortgage File to the Trustee when the need therefor no longer
exists, unless the Mortgage Loan relating to the Documents has been liquidated
and the proceeds thereof have been remitted to the Collection Account and except
as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Master Servicer shall at
all times be ear-marked for the account of the Trustee, and the Master Servicer
shall keep the Documents and any proceeds separate and distinct from all other
property in the Master Servicer's possession, custody or control.
Dated:
LONG BEACH MORTGAGE COMPANY
By:__________________________________
Name:
Title:
E-3
EXHIBIT E-2
REQUEST FOR RELEASE
(Certificate - Mortgage Loan Paid in Full)
OFFICERS' CERTIFICATE AND TRUST RECEIPT
MORTGAGE LOAN PASS-THROUGH CERTIFICATES
SERIES 2005-WL2
____________________________________________________ HEREBY CERTIFIES THAT
HE/SHE IS AN OFFICER OF THE MASTER SERVICER, HOLDING THE OFFICE SET FORTH
BENEATH HIS/HER SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
ALL PAYMENTS OF PRINCIPAL, PREMIUM (IF ANY), AND INTEREST HAVE BEEN MADE.
LOAN NUMBER:______________________ BORROWER'S NAME:________________________
COUNTY:___________________________
WE HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
WHICH ARE REQUIRED TO BE DEPOSITED IN THE COLLECTION ACCOUNT PURSUANT TO SECTION
3.10 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE CREDITED.
DATED:__________________________________
________
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
E-4
EXHIBIT E-3
FORM OF MORTGAGE LOAN ASSIGNMENT AGREEMENT
This MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "Agreement"), dated as of
______________, 200___, is by and between ______________, a ________________, as
purchaser (the "Company"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, not in its
individual capacity but as trustee (the "Trustee") for LONG BEACH MORTGAGE LOAN
TRUST 2005-WL2, as seller (the "Trust").
In consideration of the mutual covenants made herein and for other good
and valuable consideration the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement dated as of August 1,
2005 (the "Pooling and Servicing Agreement") by and among Long Beach Mortgage
Company, as master servicer (the "Master Servicer"), Long Beach Securities
Corp., as depositor, and the Trustee, as trustee.
ARTICLE 2. SALE AND CONVEYANCE OF MORTGAGE LOAN;
POSSESSION OF FILES; PAYMENT OF PURCHASE
PRICE; DELIVERY OF MORTGAGE LOAN DOCUMENTS;
RECORDATION OF ASSIGNMENTS OF MORTGAGE
SECTION 2.1 SALE AND CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF FILES
(a) Pursuant to Section 2.03 of the Pooling and Servicing
Agreement and Section 6.____________ of the Mortgage Loan Purchase Agreement,
subject to the provisions of the Pooling and Servicing Agreement and after the
deposit of the Purchase Price in the Collection Account and the Trustee's
receipt of a written certification from the Master Servicer of such deposit (the
"Certification"), the Trustee hereby sells, transfers, assigns, sets over, and
conveys to the Company, without recourse, or, except as set forth in Article 3,
representations or warranties, all the right, title, and interest of the Trust
in and to the mortgage loan identified on Schedule I attached hereto (the
"Mortgage Loan").
(b) In accordance with Section 3.17 of the Pooling and Servicing
Agreement, the Trustee will deliver to the Company, or to such third party as
the Company may direct, the documents comprising the Mortgage File with respect
to the Mortgage Loan upon the Trustee's receipt of the Certification. Upon
payment for the Mortgage Loan pursuant to Section 2.1(c) below, the beneficial
ownership of the Mortgage Note, the Mortgage, and each of the other documents
comprising the Mortgage File with respect to the Mortgage Loan is and shall be
vested in the Company, and the ownership of all records and documents with
respect to the Mortgage Loan prepared by or which come into the possession of
the Trustee or any agent or designee thereof shall immediately vest in the
Company and shall be delivered to the Company or as the Company may otherwise
direct.
E-3-1
(c) In full consideration for the sale of the Mortgage Loan
pursuant to Section 2.1(a) hereof, and upon the terms and conditions of this
Agreement, the Company hereby purchases the Mortgage Loan.
(d) Subject to the fulfillment of any other conditions to such
[purchase/repurchase] under the Pooling and Servicing Agreement and following
the deposit of the Purchase Price in the Collection Account and the Trustee's
receipt of the Certification, the Company shall own and be entitled to receive
with respect to the Mortgage Loan all Monthly Payments and all other recoveries
of principal and interest. All such amounts that are collected after the date of
the deposit of the Purchase Price and the Trustee's receipt of the Certification
shall be held and remitted by the Master Servicer to the Company in accordance
with the terms of this Agreement.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF
THE TRUSTEE CONCERNING THE MORTGAGE LOAN
The Trustee hereby represents and warrants to, and agrees with the Company
that, as to the Mortgage Loan and as of the date first written above:
The Trustee, to its actual knowledge has not taken any action with
respect to the Mortgage Loans, other than at the direction of the Company,
its attorneys and subservicers or Long Beach Securities Corp., which would
result in the imposition of any lien on, security interest in, or other
encumbrance of, the real property securing the Mortgage Loan, other than
permitted pursuant to the Pooling and Servicing Agreement, and other than
such action as might be required to preserve and maintain the Mortgage.
ARTICLE 4. MISCELLANEOUS PROVISIONS
SECTION 4.1 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York (including Section 5-1401 of the New York General
Obligations Law) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without giving effect
to conflict of laws principles other than Section 5-1401 of the New York General
Obligations Law.
SECTION 4.2 SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions, or terms of
this Agreement shall be held invalid for any reason whatsoever, 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 covenants,
agreements, provisions, or terms of this Agreement or the rights of the parties
hereunder.
E-3-2
SECTION 4.3 SCHEDULES
The schedules to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
SECTION 4.4 COUNTERPARTS; SUCCESSORS AND ASSIGNS
This Agreement may be executed in one or more counterparts, and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. This Agreement shall inure to the benefit
of and be binding upon the Company and the Trustee.
SECTION 4.5 EFFECT OF HEADINGS
The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
SECTION 4.6 SURVIVAL
The representations, warranties, covenants and agreements of the parties
provided in this Agreement and the parties' obligations hereunder shall survive
the execution, delivery and termination of this Agreement.
SECTION 4.7 COSTS
The Company shall pay all costs, fees and expenses incurred in connection
with the transfer and delivery of the Mortgage Loan purchased by the Company
under this Agreement.
[Signature page follows]
E-3-3
TO WITNESS THIS, the Company and the Trustee have caused their names to be
signed to this Mortgage Loan Assignment Agreement by their duly authorized
respective officers as of the day and year first above written.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as
Trustee for Long Beach Mortgage Loan
Trust 2005-WL2 and not in its individual
capacity
By: _______________________________
Name: ________________________
Title: ________________________
[_________________________________]
By: _______________________________
Name: ________________________
Title: ________________________
E-3-4
STATE OF ____________________ )
)ss.
COUNTY OF ___________________ )
This instrument was acknowledged before me on ______________________,
200___, by _____________________ as _________________________ of Long Beach
Mortgage Company.
________________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
_____________, residing at _____________
My commission expires __________________
E-3-5
STATE OF _______________________________)
)ss.
COUNTY OF ______________________________)
This instrument was acknowledged before me on ______________________,
200___, by _____________________ as _________________________ of Deutsche Bank
National Trust Company, as trustee for Long Beach Mortgage Loan Trust 200___-___
and not in its individual capacity.
________________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
_____________, residing at _____________
My commission expires __________________
E-3-6
SCHEDULE I
MORTGAGE LOAN SCHEDULE
E-3-7
EXHIBIT F-1
FORM OF TRUSTEE'S INITIAL CERTIFICATION
[Date]
Long Beach Securities Corp. Long Beach Mortgage Company
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Re: Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of August 1, 2005 among
Long Beach Securities Corp., Long Beach Mortgage Company
and Deutsche Bank National Trust Company,
Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2
Ladies and Gentlemen:
Pursuant to Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as Trustee, hereby acknowledges receipt of each Mortgage File and
certifies that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in the exception report annexed hereto as not being covered by this
certification), (i) all documents constituting part of such Mortgage File (other
than such documents described in Section 2.01(e) of the Pooling and Servicing
Agreement) required to be delivered to it pursuant to the Pooling and Servicing
Agreement are in its possession, (ii) such documents have been reviewed by it
and are not mutilated, torn or defaced unless initialed by the related borrower
and relate to such Mortgage Loan and (iii) based on its examination and only as
to the foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items (i), (ii), (ix), (xii), (xiv) (to the extent of the
Periodic Rate Cap for the first Adjustment Date and subsequent Adjustment Dates)
and (xvi) of the definition of "Mortgage Loan Schedule" of the Pooling and
Servicing Agreement accurately reflects information set forth in the Mortgage
File.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
due authorization, recordability or genuineness of any of the documents
contained in the Mortgage File of any of the Mortgage Loans identified on the
Mortgage Loan Schedule, or (ii) the collectability, insurability, effectiveness
or suitability of any such Mortgage Loan.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
By: ______________________
Name: ______________________
Title: ______________________
F-1
EXHIBIT F-2
FORM OF TRUSTEE'S FINAL CERTIFICATION
[Date]
Long Beach Securities Corp. Long Beach Mortgage Company
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Re: Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of August 1, 2005 among
Long Beach Securities Corp., Long Beach Mortgage Company
and Deutsche Bank National Trust Company,
Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates, Series 2005-WL2
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on the attachment hereto), it or a Custodian on its
behalf has received:
(a) the original Mortgage Note, endorsed in blank or in the
following form: "Pay to the order of Deutsche Bank National Trust Company,
as Trustee under the applicable agreement, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee or a copy of
such original Mortgage Note with an accompanying Lost Note Affidavit
executed by the Seller;
(b) the original Mortgage with evidence of recording thereon, and a
copy, certified by the appropriate recording office, of the recorded power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon;
(c) an original Assignment in blank;
(d) the original recorded Assignment or Assignments showing a
complete chain of assignment from the originator to the Person assigning
the Mortgage to the Trustee or in blank;
(e) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(f) the original lender's title insurance policy, together with all
endorsements or riders issued with or subsequent to the issuance of such
policy, insuring the priority of the Mortgage as a first lien on the
Mortgaged Property represented therein as a fee
F-2
interest vested in the Mortgagor, or in the event such title policy is
unavailable, a written commitment or uniform binder or preliminary report
of title issued by the title insurance or escrow company.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in the Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
By: ______________________
Name: ______________________
Title: ______________________
F-3
EXHIBIT G
FORM OF SWAP AGREEMENT
FACSIMILE COVER SHEET
To: Long Beach Mortgage Loan Trust 2005-WL2
(the "TRUST")
Attention: Xxxxxxxx Xxxxx, CSFBi Marketer
Fax number: To be delivered by Xxxxxxxx Xxxxx
Date: August 30, 2005
Pages (including cover page):9
Our Reference No: External ID: 9232061 / Risk ID: 552360071
Credit Suisse First Boston International has entered into a transaction
with you as attached. Please find attached a letter agreement (the
"Confirmation") which confirms the terms and conditions of the above
transaction.
If you agree with the terms specified therein, PLEASE ARRANGE FOR THE
CONFIRMATION TO BE SIGNED BY YOUR AUTHORISED SIGNATORIES and return a signed
copy to this office to the facsimile listed below.
FOR INTEREST RATE PRODUCTS: FOR EQUITY DERIVATIVES:
Telephone Numbers: (000) 000-0000 Telephone numbers: (000) 000-0000 / (212)
Facsimile number: (000) 000-0000 538-8297 /(000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx Facsimile number: (000) 000-0000
FOR CREDIT DERIVATIVES:
Telephone Numbers: (000) 000-0000
Facsimile number: (000) 000-0000
Email: xxxx.xxx-xxx-xxxxxx-xx@xxxx.xxx
We are delighted to have entered into this transaction with you.
CONFIDENTIALITY NOTICE: This facsimile is intended only for the use of the
individual or entity to which it is addressed and may contain information which
is privileged and confidential. If the reader of this message is not the
intended recipient or an employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately by telephone and return the original message to us by mail. Thank
you.
X-0
Xxxxxx 00, 0000
Xxxx Xxxxx Mortgage Loan Trust 2005-WL2
(the "TRUST")
External ID: 9232061
------------------------------------------------------------------------------
Dear Sir/Madam:
The purpose of this letter agreement (this "CONFIRMATION") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "TRANSACTION"). This Confirmation constitutes a
"Confirmation" as referred to in the Agreement specified below.
1. The definitions and provisions contained in the 2000 ISDA Definitions
(as published by the International Swaps and Derivatives Association, Inc.) (the
"DEFINITIONS") are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern. References herein to a "Transaction" shall be
deemed to be references to a "Swap Transaction" for the purposes of the
Definitions.
In this Confirmation "PARTY A" means Credit Suisse First Boston International
and "PARTY B" means the Trust.
This Confirmation supplements, forms part of, and is subject to, the 1992
ISDA Master Agreement dated as of August 23, 2005 as amended and supplemented
from time to time (the "AGREEMENT"), between Party A and Party B. All provisions
contained in the Agreement govern this Confirmation except as expressly modified
below. All terms used herein and not otherwise defined are given their meaning
in the Pooling and Servicing Agreement dated as of August 1, 2005 between Long
Beach Securities Corp. as Depositor, Long Beach Mortgage Company as Master
Servicer and Deutsche Bank National Trust Company, as Trustee for the Trust, as
amended and supplemented from time to time (the "PSA"). In the event of an
inconsistency between the terms defined in the PSA and this Confirmation, this
Confirmation will govern.
G-2
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: August 23, 2005
Effective Date: August 30, 2005
Termination Date: The earliest of (a) the date on which the Certificate
Principal Balance of the Class III-A1 Certificates has been
reduced to zero, (b) the date on which all of the Trust's
assets are distributed following the exercise by the
Terminator of its right of optional termination as described
in the PSA, (c) the date on which all of the Trust's
obligations under the PSA are otherwise reduced to zero and
(d) the Distribution Date in August, 2035.
Floating Rate Payer: In respect of each Party A Floating Amount, Party A and in
respect of each Party B Floating Amount, Party B.
Notional Amount: In respect of each Payment Date, the lesser of (a) the
Certificate Principal Balance of the Class III-A1
Certificates as of the last day of the related Calculation
Period and (b) the aggregate Stated Principal Balance of the
Group III Mortgage Loans, as of the first day of the
calendar month in which the related Payment Date falls after
giving effect to any scheduled payments of principal due
during the related Due Period to the extent received or
advanced, and unscheduled collections of principal received
during the related Prepayment Period multiplied by the Group
III Fraction, in each case as set forth in the Trustee's
statement issued in respect of the related Calculation
Period pursuant to Section 4.03(a) of the PSA.
Calculation Period: In respect of each Payment Date, the period from, and
including, the immediately preceding Payment Date, to, but
excluding, the relevant Payment Date, provided that, the
initial Calculation Period shall commence on, and include,
the Effective Date and the final Calculation Period shall
end on, and exclude, the Termination Date, as such day may
be subject to adjustment in accordance with the Following
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Business Day Convention.
Payment Dates: Each 25th calendar day of each calendar month, commencing in
the calendar month of September 2005.
Floating Rate Day Count Fraction: Actual/360
Business Days: New York
Party A Floating Amounts
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One month, including, for the avoidance of doubt, in respect
of the initial Calculation Period.
Spread: 0.18 per cent. per annum in respect of each Calculation
Period falling in the period from, and including, the
Effective Date to, but excluding, the Optional Termination
Date, and 0.36 per cent. per annum in respect of each
Calculation Period (if any) falling in the period from, and
including, the Optional Termination Date to, but excluding,
the Termination Date.
Reset Dates: The first day of each Calculation Period.
Party B Floating Amounts
Party B Floating Amounts: In respect of each Payment Date, the lesser of:
(a) the product of:
(i) the Notional Amount;
(ii) the sum of:
(A) the Formula Rate as applicable to the
Class III-A1 Certificates in respect of
the related Calculation Period; and
(B) the Party B Spread; and
G-4
(iii) the Floating Rate Day Count Fraction; and
(b) the product of:
(i) the Notional Amount;
(ii) the Net WAC Rate in respect of the Group III
Senior Certificates for the related Calculation
Period; and
(iii) the Floating Rate Day Count Fraction.
Party B Spread: 0.08 per cent. per annum in respect of each Calculation
Period falling in the period from, and including, the
Effective Date to, but excluding, the Optional Termination
Date, and 0.16 per cent. per annum in respect of each
Calculation Period (if any) falling in the period from, and
including, the Optional Termination Date to, but excluding,
the Termination Date.
3. OTHER PROVISIONS:
Gross Swap Reimbursement In respect of each Payment Date, the sum of (a) the Swap
Amount: Reimbursement Amount in respect of such Payment Date, (b)
any Swap Reimbursement Amount(s), or part thereof, that
remain unpaid in respect of any prior Payment Date and (c)
interest in respect of such amount(s) charged at a rate
equal to the Formula Rate in respect of the Class III-A1
Certificates at such time.
On each Payment Date, Party B shall pay to Party A the Gross
Swap Reimbursement Amount in respect of such Payment Date
(if any), provided that, a failure by Party B to make, when
due, any payment of the Gross Swap Reimbursement Amount
under this Transaction shall not constitute a Failure to Pay
or Deliver in respect of Party B unless such failure occurs
in breach of the PSA.
Swap Reimbursement Amount: In respect of each Payment Date, an amount equal to the
Party A Floating Amount minus the lesser of:
(a) an amount equal to the product of:
(i) the Notional Amount;
G-5
(ii) the Formula Rate as applicable to the Class
III-A1 Certificates in respect of the related
Calculation Period; and
(iii) the Floating Rate Day Count Fraction; and
(b) an amount equal to the product of:
(i) the Notional Amount;
(ii) the Net WAC Rate in respect of the Group III
Senior Certificates for the related Calculation
Period; and
(iii) the Floating Rate Day Count Fraction.
Adjustment of each Floating In respect of each Payment Date, the Party A Floating Amount
Amount: and the Party B Floating Amount will each be reduced by the
amount by which the cashflow on the Mortgage Loans in
respect of the related Calculation Period is insufficient to
cover interest distributions payable in respect of the
related Calculation Period in respect of the Class III-A1
Certificates due to:
(a) the Net Prepayment Interest Shortfall (if any) in
respect of the related Calculation Period; and
(b) all Relief Act Interest Shortfalls (if any) in respect
of the related Calculation Period.
Calculation of Loss following Upon the designation of an Early Termination Date in respect
Termination Event/Event of of this Transaction, the relevant party for the purposes of
Default: determining a party's Loss in respect of this Transaction
shall, in all circumstances, be Party A. In calculating a
party's Loss, Party A shall take into account the
anticipated amortization, of the Certificate Principal
Balance of the Class III-A1 Certificates for all Calculation
Periods that would otherwise have fallen after such Early
Termination Date.
Additional representations: Each party represents to the other party on the date on
which it enters into this Transaction that:
G-6
(a) NON-RELIANCE. It is acting for its own account, and has
made its own independent decisions to enter into this
Transaction and as to whether this Transaction is
appropriate or proper for it based upon its own
judgement and upon advice from such advisers as it has
deemed necessary. It is not relying on any
communication (written or oral) of the other party as
investment advice or as a recommendation to enter into
this Transaction; it being understood that information
and explanations related to the terms and conditions of
this Transaction shall not be considered investment
advice or a recommendation to enter into this
Transaction. No communication (written or oral)
received from the other party shall be deemed to be an
assurance or guarantee as to the expected results of
this Transaction.
(b) ASSESSMENT AND UNDERSTANDING. It is capable of
assessing the merits of and understanding (on its own
behalf or through independent professional advice), and
understands and accepts, the terms, conditions and
risks of this Transaction. It is also capable of
assuming, and assumes, the risks of this Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or an adviser to it in respect of this
Transaction.
4. ACCOUNT DETAILS:
Payments to Party A: Bank of New York
SWIFT XXXXXX0X
for favour Credit Suisse First Boston International,
London
A/c No. 8900360968
Payments to Party B: To be advised under separate cover or telephone confirmed
prior to each Payment Date
G-7
Credit Suisse First Boston International is regulated and authorised by The
Financial Services Authority and has entered into this Transaction as principal.
The time at which the above Transaction was executed will be notified to Party B
on request.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by signing and returning this Confirmation.
Yours faithfully,
CREDIT SUISSE FIRST BOSTON
INTERNATIONAL
By:_____________________________
Name:
Title:
Confirmed as of the date first written above:
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2
BY DEUTSCHE BANK NATIONAL TRUST COMPANY,
NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS TRUSTEE ON BEHALF OF THE TRUST
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
G-8
RATE SWAP SCHEDULE
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of August 23, 2005
between
CREDIT SUISSE FIRST BOSTON LONG BEACH MORTGAGE LOAN
INTERNATIONAL TRUST 2005-WL2
and
_____________________________________ ___________________________________
_______ _______
("Party A") ("Party B")
PART 1
TERMINATION PROVISIONS.
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:
Section 5(a)(v), Not applicable
Section 5(a)(vi), Not applicable
Section 5(a)(vii), Not applicable
Section 5(b)(iv), Not applicable
and in relation to Party B for the purpose of:
Section 5(a)(v), Not applicable
Section 5(a)(vi), Not applicable
Section 5(a)(vii), Not applicable
Section 5(b)(iv), Not applicable
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) CERTAIN EVENTS OF DEFAULT. The following Events of Default will apply to
the parties as specified below, and the definition of "Event of Default" in
Section 14 is deemed to be modified accordingly:
Section 5(a)(i) (Failure to Pay or Deliver) will apply to Party A and
Party B.
Section 5(a)(ii) (Breach of Agreement) will not apply to Party A or
Party B.
Section 5(a)(iii) (Credit Support Default) will not apply to Party A
or Party B.
Section 5(a)(iv) (Misrepresentation) will not apply to Party A or
Party B.
G-9
Section 5(a)(v) (Default under Specified Transaction) will not apply
to Party A or Party B.
Section 5(a)(vi) (Cross Default) will not apply to Party A or Party B.
Section 5(a)(vii) (Bankruptcy) will apply to Party A and Party B;
provided that clause (2) thereof shall not apply to Party B.
Section 5(a)(viii) (Merger without Assumption) will apply to Party A
and will not apply to Party B.
(d) TERMINATION EVENTS. The following Termination Events will apply to the
parties as specified below:
Section 5(b)(i) (Illegality) will apply to Party A and Party B.
Section 5(b)(ii) (Tax Event) will apply to Party A and Party B.
Section 5(b)(iii) (Tax Event upon Merger) will apply to Party A and
will not apply to Party B.
Section 5(b)(iv) (Credit Event upon Merger) will not apply to Party A
or Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) of this
Agreement will not apply to Party A or Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Loss will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) ADDITIONAL TERMINATION EVENTS. The following Additional Termination Events
will apply, in each case with respect to Party B as the sole Affected Party
(unless otherwise provided below):
(i) Party A fails to comply with the Downgrade Provisions as set forth in
Part 5(b). For all purposes of this Agreement, Party A shall be the
sole Affected Party with respect to the occurrence of a Termination
Event described in this Part 1(h)(i).
(ii) The Pooling and Servicing Agreement dated as of August 1, 2005 between
Long Beach Securities Corp. as Depositor, Long Beach Mortgage Company
as Master Servicer, Deutsche Bank National Trust Company as Trustee
for the Trust (the "TRUSTEE") as amended and supplemented from time to
time (the "PSA") or other transaction document is amended or modified
without the prior written consent of Party A, where such consent is
required under the terms of the PSA.
G-10
PART 2
TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this Agreement,
Party A will make the following representation and Party B will make the
following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness
of any document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of this Agreement, provided that
it shall not be a breach of this representation where reliance is placed on
clause (ii) and the other party does not deliver a form or document under
Section 4(a)(iii) of this Agreement by reason of material prejudice to its
legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this Agreement,
Party A and Party B make the representations specified below, if any:
(i) Party A makes the following representation to Party B:
(A) Party A is entering into each Transaction in the ordinary
course of its trade as, and is, a recognized UK bank as defined
in Section 840A of the UK Income and Corporation Taxes Act of
1988.
(B) Party A has been approved as a Withholding Foreign
Partnership by the US Internal Revenue Service.
(C) Party A's Withholding Foreign Partnership Employer
Identification Number is 00-0000000.
(D) Party A is a partnership that agrees to comply with any
withholding obligation under Section 1446 of the Internal
Revenue Code.
(ii) Party B makes no representations for the purpose of Section 3(f) of
this Agreement.
G-11
PART 3
AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:-- None
(b) Other documents to be delivered are:--
------------------------------------------------------------------------------------------------------------------------
PARTY FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE COVERED BY
REQUIRED TO DELIVERED SECTION 3(D)
DELIVER REPRESENTATION
DOCUMENT
------------------------------------------------------------------------------------------------------------------------
Party A Certified copy of the board of directors resolution (or Concurrently with the Yes
equivalent authorizing documentation) which sets forth the execution and
authority of each signatory to this Agreement and each Credit delivery of this
Support Document (if any) signing on its behalf and the Agreement.
authority of such party to enter into Transactions
contemplated and performance of its obligations hereunder.
------------------------------------------------------------------------------------------------------------------------
Party A and Incumbency certificate (or, if available the current Concurrently with Yes
Party B authorized signature book or equivalent authorizing the execution and
documentation) specifying the names, titles, authority and delivery of this
specimen signatures of the persons authorized to execute this Agreement unless
Agreement which sets forth the specimen signatures of each previously delivered
signatory to this Agreement, each Confirmation and each Credit and still in full force
Support Document (if any) signing on its behalf. and effect.
------------------------------------------------------------------------------------------------------------------------
Party A and An opinion of counsel to such party reasonably satisfactory Concurrently with No
B in form and substance to the other party. the execution and
delivery of the
Confirmation unless
previously delivered
and still in full
force and effect.
------------------------------------------------------------------------------------------------------------------------
Party B An executed copy of the PSA. Within 30 days after Yes
the date of this
Agreement.
------------------------------------------------------------------------------------------------------------------------
PART 4.
MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For the purposes of Section 12(a) of this Agreement:
Party A:
G-12
(1) Address for notices or communications to Party A (other than by
facsimile):-
Address: One Cabot Square Attention: (1) Head of Credit Risk Management;
Xxxxxx X00 0XX (2) Managing Director -
England Operations Department;
(3) Managing Director - Legal Department
Telex No.: 264521 Answerback: CSFBI G
(For all purposes.)
(2) For the purpose of facsimile notices or
communications under this Agreement (other than a notice or
communication under Section 5 or 6):-
Facsimile No.: 44 20 7888 2686
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: 44 20 7888 2028 Designated responsible employee for the
purposes of Section 12(a)(iii): Senior Legal Secretary
Party B: Long Beach Mortgage Loan Trust 2005-WL2
c/o: Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx,
Xxxxxxxxxx 00000-0000
Attention: LB05W2
(b) PROCESS AGENT. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent:
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Legal and Compliance Department
Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. With respect to Party A, the provisions of Section 10(a) will
apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Credit Support Document means
G-13
With respect to Party A: The Credit Support Annex.
With respect to Party B: The PSA.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine other than New York General Obligation Law Sections
5-1401 and 5-1402).
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will apply to all Transactions.
(j) "Affiliate." Each of Party A and Party B shall be deemed to have no
Affiliates.
G-14
Part 5.
Other Provisions.
(a) Definitions.
Any capitalized terms used but not otherwise defined in this Agreement
shall have the meanings assigned to them (or incorporated by reference) in
the PSA. In the event of any inconsistency between the terms of this
Agreement and the terms of the PSA, this Agreement will govern.
A. (b) Downgrade Provisions.
(1) It shall be a collateralization event (a "Collateralization Event") if
(A) (i) the unsecured, unguaranteed and otherwise unsupported long-term
senior debt obligations of Party A are rated below "A1" by Xxxxx'x
Investors Service, Inc. ("Moody's") or are rated "A1" by Moody's and such
rating is on watch for possible downgrade (but only for so long as it is on
watch for possible downgrade) and (ii) the unsecured, unguaranteed and
otherwise unsupported short-term debt obligations of Party A are rated
below "P-1" by Moody's or are rated "P-1" by Moody's and such rating is on
watch for possible downgrade (but only for so long as it is on watch for
possible downgrade), (B) no short-term rating is available from Moody's and
the unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A are rated below "Aa3" by Moody's or are rated "Aa3"
by Moody's and such rating is on watch for possible downgrade (but only for
so long as it is on watch for possible downgrade), or (C) either (i) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of Party A are rated below "A-1" by Standard & Poor's Rating
Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") or (ii) if
Party A does not have a short-term rating from S&P, the unsecured,
unguaranteed and otherwise unsupported long-term senior debt obligations of
Party A are rated below "A+" by S&P. For the avoidance of doubt, the
parties hereby acknowledge and agree that notwithstanding the occurrence of
a Collateralization Event, this Agreement and each Transaction hereunder
shall continue to qualify as a Swap Agreement for purposes of the
distribution priorities in Article IV of the PSA. During any period in
which a Collateralization Event is occurring, Party A shall, at its own
expense, either (i) post collateral according to the terms of the 1994 ISDA
Credit Support Annex to this Schedule , including Paragraph 13, thereof
(the "Credit Support Annex"), (ii) furnish a guarantee of Party A's
obligations under this Agreement from a guarantor with a long-term credit
rating greater than or equal to "A+" by S&P and "Aa3" by Moody's or (iii)
obtain a substitute counterparty that (a) is reasonably acceptable to Party
B, and confirmed in writing by the Rating Agencies (as defined in the PSA),
(b) satisfies the Hedge Counterparty Ratings Requirement (as defined
herein) and (c) assumes the obligations of Party A under this Agreement
(through an assignment and assumption agreement in form and substance
reasonably satisfactory to Party B) or replaces the outstanding
Transactions hereunder with transactions on identical terms, except that
Party A shall be replaced as counterparty, provided that such substitute
counterparty, as of the date of such assumption or replacement, must not,
as a result thereof, be required to withhold or deduct on account of tax
under the Agreement or the new transactions, as applicable, and such
assumption or replacement must not lead to a termination event or event of
default occurring in respect of the new transactions, as applicable. To the
extent that Party A elects or is required to post collateral pursuant to
this Part 5(b)(1), Party A shall request its legal counsel to deliver to
each applicable Rating Agency within thirty (30) calendar days of the
occurrence of such Collateralization Event an opinion as to the
enforceability of the Credit Support Annex.
G-15
(2) It shall be a ratings event (a "Ratings Event") if at any time after
the date hereof Party A shall fail to satisfy the Hedge Counterparty
Ratings Threshold. "Hedge Counterparty Ratings Threshold" shall mean (A)
the unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A are rated at least "BBB-" by S&P, (B) the unsecured,
unguaranteed and otherwise unsupported long-term senior debt obligations of
Party A are rated at least "A3" by Moody's (and such rating is not on watch
for possible downgrade) and the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of Party A are rated at least "P-2"
by Moody's (and such rating is not on watch for possible downgrade), and
(C) either (i) the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of Party A are rated at least "A" by
Fitch, Inc. ("Fitch") or (ii) the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of Party B are rated at least "F1"
by Fitch. For the avoidance of all doubts, the parties hereby acknowledge
and agree that notwithstanding the occurrence of a Ratings Event, this
Agreement and each Transaction hereunder shall continue to qualify as a
Swap Agreement for purposes of the distribution priorities in Section 4.01
of the PSA.
(3) Following a Ratings Event, Party A shall take the following actions:
(a) Party A, at its sole expense, shall (i) commence actively to seek
to obtain a substitute counterparty that (A) is confirmed in writing by
the Rating Agencies, (B) satisfies the Hedge Counterparty Ratings
Requirement and (C) assumes the obligations of Party A under this
Agreement (through an assignment and assumption agreement in form and
substance reasonably satisfactory to Party B) or replaces the
outstanding Transactions hereunder with transactions on identical
terms, except that Party A shall be replaced as counterparty, provided
that such substitute counterparty, as of the date of such assumption or
replacement, must not, as a result thereof, be required to withhold or
deduct on account of tax under the Agreement or the new transactions,
as applicable, and such assumption or replacement must not lead to a
termination event or event of default occurring in respect of the new
transactions, as applicable, and (ii) be required to post collateral as
set forth in (b) below;
(b) If Party A has not obtained a substitute counterparty as set forth
in (3)(a) above within 30 days (or, in the case of a failure to meet
the requirements of subparagraph (A) of the definition of "Hedge
Counterparty Ratings Threshold", as soon as commercially practicable
after such failure) of the Ratings Event, then Party A shall continue
to seek a substitute counterparty and, on or prior to the expiration of
such period, post collateral according to the terms of the Credit
Support Annex. Notwithstanding anything contained herein to the
contrary, if Party A is required to transfer its rights and obligations
under this Agreement pursuant to this Part 5(b)(3) as a result of a
rating issued by S&P, Party A shall, at all times prior to such
transfer, be required to post collateral in accordance with (i) the
terms of the Credit Support Annex or (ii) an agreement with Party B
providing for the posting of collateral, which agreement shall satisfy
the Rating Agency Condition specified in Part 5(n) below and require
Party A to post the required collateral.
"HEDGE COUNTERPARTY RATINGS REQUIREMENT" shall mean (a) either (i) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of the substitute counterparty are rated at least "A-1" by
S&P or (ii) if the substitute counterparty does not have a short-term
rating from S&P, the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of the substitute counterparty are
rated at least "A+" by S&P, (b) either (i) the unsecured, unguaranteed
and otherwise unsupported long-term senior debt obligations of such
substitute counterparty are rated at least "A1" by Moody's (and if
rated "A1" by Moody's, such rating is not on watch for possible
downgrade) and the unsecured, unguaranteed and otherwise unsupported
short-term debt obligations of such substitute counterparty are rated
at least "P-1" by Moody's (and if rated "P-1" by Moody's, such rating
is not on watch for possible downgrade and remaining on watch for
possible downgrade), or (ii) if such substitute counterparty does not
have a short-term debt rating from Moody's, the unsecured, unguaranteed
and otherwise unsupported long-term senior debt obligations of such
substitute counterparty are rated at least "Aa3" by Moody's (and if
rated "Aa3" by Moody's, such rating is not on watch for possible
downgrade), and (c) either (i) the unsecured, unguaranteed and
otherwise unsupported long-term senior debt obligations of such
substitute counterparty are rated at least "A" by Fitch or (ii) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of such substitute counterparty are rated at least "F1" by
Fitch. For the purpose of this definition, no direct or indirect
recourse against one or more shareholders of the substitute
counterparty (or against any Person in control of, or controlled by, or
under common control with, any such shareholder)
G-16
shall be deemed to constitute a guarantee, security or support of the
obligations of the substitute counterparty.
(c) Section 3(a) of this Agreement is hereby amended to include the following
additional representations after paragraph 3(a)(v):
(vi) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract
participant" as defined in section 1a(12) of the U.S. Commodity
Exchange Act.
(vii) INDIVIDUAL NEGOTIATION. This Agreement and each Transaction
hereunder is subject to individual negotiation by the parties.
(viii) RELATIONSHIP BETWEEN PARTY A AND PARTY B. Subject as provided in
Part 5(g), each of Party A and Party B will be deemed to represent
to the other on the date on which it enters into a Transaction or
an amendment thereof that (absent a written agreement between Party
A and Party B that expressly imposes affirmative obligations to the
contrary for that Transaction):
(1) PRINCIPAL. It is acting as principal and not as agent when
entering into this Agreement and each Transaction.
(2) NON-RELIANCE. It is acting for its own account and it has
made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written
or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanations related to the
terms and conditions of a Transaction shall not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from the other party shall be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(3) EVALUATION AND UNDERSTANDING. It is capable of evaluating
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the
terms, conditions and risks of this Agreement and each
Transaction hereunder. It is also capable of assuming, and
assumes, all financial and other risks of this Agreement
and each Transaction hereunder.
(4) STATUS OF PARTIES. The other party is not acting as a
fiduciary or an advisor for it in respect of that
Transaction.
(d) SECTION 1(C). For purposes of Section 1(c) of the Agreement, the
Transaction with External ID: 9232061] shall be the sole Transaction under
the Agreement.
(e) TRANSFER. Section 7 is hereby amended to read in its entirety as follows:
Except as stated under Section 6(b)(ii), neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or
interests under this Agreement or any Transaction without the prior written
consent of the other party; provided, however, that (i) Party A may make
such a transfer of this Agreement pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of substantially all
of its assets to, another entity, or an incorporation, reincorporation or
reconstitution, and (ii) Party A may transfer this Agreement to any Person
that is an office, branch or affiliate of Party A (any such Person, office,
branch or affiliate, a "TRANSFEREE") on at least five Business Days' prior
written notice to Party B; provided that, with respect to clause (ii), (A)
as of the date of such transfer the Transferee will not be required to
withhold or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make payments of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement in
respect of such Tax; (B) a Termination Event or Event of Default does not
occur under this Agreement as a result of such transfer; (C) such notice is
accompanied by a written instrument pursuant to which the Transferee
acquires and assumes the rights and obligations of Party A so transferred;
and (D) Party A will be
G-17
responsible for any costs or expenses incurred in connection with such
transfer. Party B will execute such documentation as is reasonably deemed
necessary by Party A for the effectuation of any such transfer.
Notwithstanding the foregoing, no such transfer shall be made unless the
transferring party obtains a written acknowledgment from each of the Rating
Agencies that, notwithstanding such transfer, the then-current ratings of
the Offered Certificates will not be reduced or withdrawn.
Except as specified otherwise in the documentation evidencing a transfer, a
transfer of all the obligations of Party A made in compliance with this
Section 7 will constitute an acceptance and assumption of such obligations
(and any related interests so transferred) by the Transferee, a novation of
the transferee in place of Party A with respect to such obligations (and
any related interests so transferred), and a release and discharge by Party
B of Party A from, and an agreement by Party B not to make any claim for
payment, liability, or otherwise against Party A with respect to, such
obligations from and after the effective date of the transfer.
(f) TRUSTEE CAPACITY. It is expressly understood and agreed by the parties
hereto that (i) this Agreement is executed and delivered by the Trustee not
individually or personally but solely as trustee of the Trust, in the
exercise of the powers and authority conferred and vested in it under the
PSA, (ii) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as personal
representations, undertakings and agreements by the Trustee but is made and
intended for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability on the part of the
Trustee, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any Person claiming by,
through or under the parties hereto and (iv) under no circumstances shall
the Trustee be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Trust under this Agreement or any other related documents as to all of
which recourse shall be had solely to the assets of the Trust in accordance
with the terms of the PSA.
(g) ADDITIONAL REPRESENTATIONS.
Party B represents that:
(i) Status. The Trustee is trustee of the Trust whose appointment is
valid and effective both under the laws of the State of New York and
under the PSA, and the Trustee has the power to own assets in its
capacity as trustee of the Trust.
(ii) Powers. In its capacity as trustee of the Trust, the Trustee has
power under the PSA to execute this Agreement and any other
documentation relating to this Agreement that the Trustee is
executing and delivering on behalf of the Trust, to deliver this
Agreement and any other documentation relating to this Agreement that
it is required to execute and deliver and to perform the obligations
(on behalf of the Trust) under this Agreement and any obligations (on
behalf of the Trust) under any Credit Support Document to which the
Trust is party and has taken all necessary action to authorize such
execution, delivery and performance;
(iii) No violation or conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to the Trustee or the
Trust, any provision of the PSA, any order or judgment of any court
or other agency of government applicable to the Trustee, the Trust or
any assets of the Trust, or any contractual restriction binding on or
affecting the Trustee, the Trust or any assets of the Trust;
(iv) Consents. All governmental and other consents that are required have
been obtained by the Trust with respect to this Agreement or any
Credit Support Document to which the Trust is party have been
obtained and are in full force and effect and all conditions of such
consents have been complied with; and
(v) Obligations binding. The obligation of the Trust under this Agreement
and any Credit Support Document to which the Trust is party
constitute legal, valid and binding obligations of the Trust,
enforceable against the Trust in accordance with their respective
terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a
proceeding in equity or law)) and no circumstances are known to the
Trust or the Trustee which would or might prevent the Trustee from
having recourse to the assets of the Trust for the purposes of
meeting such obligations.
G-18
(h) PROCEEDINGS. Without impairing any right afforded to it under the PSA as a
third party beneficiary, Party A shall not institute against or cause any
other person to institute against, or join any other person in instituting
against the Trust, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any federal or state
bankruptcy, dissolution or similar law, for a period of one year and one
day, or if longer the applicable preference period then in effect,
following indefeasible payment in full of the Certificates. Nothing shall
preclude, or be deemed to stop, Party A (i) from taking any action prior to
the expiration of the aforementioned one year and one day period, or if
longer the applicable preference period then in effect, in (A) any case or
proceeding voluntarily filed or commenced by Party B or (B) any involuntary
insolvency proceeding filed or commenced by a Person other than Party A, or
(ii) from commencing against Party B or any of the Mortgage Loans any legal
action which is not a bankruptcy, reorganization, arrangement, insolvency,
moratorium, liquidation or similar proceeding.
(i) CHANGE OF ACCOUNT. Section 2(b) of this Agreement is hereby amended by the
addition of the following after the word "delivery" in the first line
thereof:-
"to another account in the same legal and tax jurisdiction as the original
account"
(j) POOLING AND SERVICING AGREEMENT. Party B will provide at least ten days'
prior written notice to Party A of any proposed amendment or modification
to the PSA and Party B will obtain the prior written consent of Party A to
any such amendment or modification, where such consent is required under
the terms of the PSA.
(k) SET-OFF. Notwithstanding any provision of this Agreement or any other
existing or future agreements, each of Party A and Party B irrevocably
waives as to itself any and all contractual rights it may have to set off,
net, recoup or otherwise withhold or suspend or condition its payment or
performance of any obligation to the other party under this Agreement
against any obligation of one party hereto to the other party hereto
arising outside of this Agreement. The provisions for set-off set forth in
Section 6(e) of this Agreement shall not apply for purposes of this
Transaction.
(l) NOTICE OF CERTAIN EVENTS OR CIRCUMSTANCES. Each party agrees, upon learning
of the occurrence or existence of any event or condition that constitutes
(or that with the giving of notice or passage of time or both would
constitute) an Event of Default or Termination Event with respect to such
party, promptly to give the other party notice of such event or condition
(or, in lieu of giving notice of such event or condition in the case of an
event or condition that with the giving of notice or passage of time or
both would constitute an Event of Default or Termination Event with respect
to the party, to cause such event or condition to cease to exist before
becoming an Event of Default or Termination Event); provided that failure
to provide notice of such event or condition pursuant to this Part 5(l)
shall not constitute an Event of Default or a Termination Event.
(m) REGARDING PARTY A. Party B acknowledges and agrees that Party A has had and
will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of assets
of Party B; (ii) the selection of any person performing services for or
acting on behalf of Party B; (iii) the selection of Party A as the
Counterparty; (iv) the terms of the Certificates; (v) the preparation of or
passing on the disclosure and other information contained in any offering
circular for the Certificates, the PSA, or any other agreements or
documents used by Party B or any other party in connection with the
marketing and sale of the Certificates (other than information provided by
Party A for purposes of the disclosure document relating to the Offered
Certificates); (vi) the ongoing operations and administration of Party B,
including the furnishing of any information to Party B which is not
specifically required under this Agreement; or (vii) any other aspect of
Party B's existence.
(n) RATING AGENCY CONDITION. Without prejudice to Section 9 of this Agreement,
this Agreement will not be amended unless Party B shall have received prior
written confirmation from each of the Rating Agencies that such amendment
will not cause S&P, Xxxxx'x or Fitch to downgrade or withdraw its
then-current ratings of any outstanding Offered Certificates.
(o) JURISDICTION. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-" and (ii) deleting
the final paragraph thereof.
G-19
(p) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Agreement or any Credit Support
Document. Each party certifies (i) that no representative, agent or
attorney of the other party or any Credit Support Provider has represented,
expressly or otherwise, that such other party would not, in the event of
such a suit, action or proceeding, seek to enforce the foregoing waiver and
(ii) acknowledges that it and the other party have been induced to enter
into this Agreement and provide for any Credit Support Document, as
applicable, by, among other things, the mutual waivers and certifications
in this Section.
(q) CONSENT TO RECORDING. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties
in connection with this Agreement or any potential transaction and (ii) if
applicable, agrees to obtain any necessary consent of, and give notice of
such recording to, such personnel.
(r) INDEPENDENT RELIANCE. The parties agree to amend Section 3 of this
Agreement by the addition of the following provision at the end thereof and
marked as subsection (g).
"(g) INDEPENDENT RELIANCE. Party A is entering into this Agreement and
will enter into each Transaction in reliance upon such tax,
accounting, regulatory, legal, and financial advice as it deems
necessary and not upon any view expressed by the other party.
Party B is entering into this Agreement and will enter into each
Transaction in reliance upon the direction of the Depositor and
not upon any view expressed by the other party."
(s) ESCROW PAYMENTS. If (whether by reason of the time difference between the
cities in which payments are to be made or otherwise) it is not possible
for simultaneous payments to be made on any date on which both parties are
required to make payments hereunder, either party may at its option and in
its sole discretion notify the other party that payments on that date are
to be made in escrow. In this case deposit of the payment due earlier on
that date shall be made by 2:00 pm (local time at the place for the earlier
payment) on that date with an escrow agent selected by the notifying party,
accompanied by irrevocable payment instructions (i) to release the
deposited payment to the intended recipient upon receipt by the escrow
agent of the required deposit of the corresponding payment from the other
party on the same date accompanied by irrevocable payment instructions to
the same effect or (ii) if the required deposit of the corresponding
payment is not made on that same date, to return the payment deposited to
the party that paid it into escrow. The party that elects to have payments
made in escrow shall pay all costs of the escrow arrangements.
G-20
IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date specified on the first page
hereof.
CREDIT SUISSE FIRST BOSTON LONG BEACH MORTGAGE LOAN TRUST
INTERNATIONAL 2005-WL2
BY DEUTSCHE BANK NATIONAL TRUST COMPANY,
NOT IN ITS INDIVIDUAL CAPACITY BUT
SOLELY AS TRUSTEE ON BEHALF OF LONG
BEACH MORTGAGE LOAN TRUST 2005-WL2
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
G-21
ELECTIONS AND VARIABLES
TO THE ISDA CREDIT SUPPORT ANNEX
DATED AS OF AUGUST 23, 2005
BETWEEN
CREDIT SUISSE FIRST BOSTON INTERNATIONAL AND LONG BEACH MORTGAGE LOAN TRUST
2005-WL2
("PARTY A") ("PARTY B")
PARAGRAPH 13.
(a) SECURITY INTEREST FOR "OBLIGATIONS".
The term "OBLIGATIONS" as used in this Annex includes the following
additional obligations:
With respect to Party A: None.
With respect to Party B: None.
(b) CREDIT SUPPORT OBLIGATIONS.
(i) DELIVERY AMOUNT, RETURN AMOUNT AND CREDIT SUPPORT AMOUNT.
(A) "DELIVERY AMOUNT" has the meaning specified in Paragraph
3(a), except that the words "upon a demand made by the Secured
Party" shall be deleted and the word "that" on the second line
of Paragraph 3(a) shall be replaced with the word "a".
Paragraph 4(b) is hereby amended by the insertion of the words
"(i) in respect of a Transfer pursuant to Paragraph 3(b),"
immediately prior to the words "if a demand for" and the
insertion of the words "; and (ii) in respect of a Transfer
pursuant to Paragraph 3(a), the relevant Transfer will be made
not later than the close of business on the Local Business Day
following the Valuation Date" immediately prior to the period.
(B) "RETURN AMOUNT" has the meaning specified in Paragraph
3(b).
(C) "CREDIT SUPPORT AMOUNT" for a Valuation Date shall mean one
of the following depending on whether or not the specified
events have occurred on such Valuation Date:-
(i) if a Collateralization Event has not occurred, or
has occurred but is not continuing, "CREDIT SUPPORT
AMOUNT" shall mean zero (0);
(ii) if a Ratings Event has occurred and is continuing or
a Collateralization Event has occurred other than
pursuant to Part 5(b)(1)(C) and is continuing,
"CREDIT SUPPORT AMOUNT" shall mean an amount in USD
equal to the greater of (a) the Secured Party's
Exposure and (b) an amount equal to the Floating
Amount payable by Party A in respect of the first
Floating Rate Payer Payment Date scheduled to occur
on or after the date on which the Delivery Amount as
a result of such Collateralization Event is due;
G-22
(iii) if a Collateralization Event has occurred
pursuant to Part 5(b)(1)(C) and is continuing,
"CREDIT SUPPORT AMOUNT" shall mean an amount in USD
equal to the greater of (a) the sum of (i) Party B's
Exposure and (ii) the Notional Volatility Buffer and
(b) zero. "NOTIONAL VOLATILITY BUFFER", as
determined by the Valuation Agent for any date,
means the product of (i) the Notional Amount of the
Transaction on such date, (ii) multiplied by the
Payment Factor, (iii) multiplied by the Volatility
Buffer Percentage for such date as set out in the
table below on such date,
--------------------------------------------------------------
PARTY A S&P RATING ON SUCH VOLATILITY BUFFER PERCENTAGE
DATE
--------------------------------------------------------------
S&P S-T Rating of A-1 or above 0.00%
S&P S-T Rating of A-2 3.25%
S&P S-T Rating of A-3 4.00%
S&P L-T Rating of BB+ or lower 4.50%
L-T Rating means with respect to any Person, the
unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of such Person.
S-T Rating means with respect to any Person, the
unsecured, unguaranteed and otherwise unsupported
short-term debt obligations of such Person.
Payment Factor means 1.
(ii) ELIGIBLE COLLATERAL. On any date, the following items will qualify
as "ELIGIBLE COLLATERAL" for Party A:
VALUATION
PERCENTAGE
(A) Cash 100%
(B) negotiable debt obligations issued 98.5%
after 18 July 1984 by the U.S. Treasury Department
having a residual maturity on such date
of less than 1 year
(C) negotiable debt obligations issued 93.6%
after 18 July 1984 by the U.S. Treasury Department
having a residual maturity on such date
equal to or greater than
1 year but less than 5 years
(D) negotiable debt obligations issued 89.9%
after 18 July 1984 by the U.S. Treasury Department
having a residual maturity on such date
equal to or greater than 5 years but less
than 10 years
G-23
(iii) OTHER ELIGIBLE SUPPORT. None.
(iv) THRESHOLDS.
(A) "INDEPENDENT AMOUNT" means with respect to Party A: Not
applicable.
"INDEPENDENT AMOUNT" means with respect to Party B: Not
applicable.
(B) "THRESHOLD" means with respect to Party A and Party B: Not
applicable.
(C) "MINIMUM TRANSFER AMOUNT" means with respect to Party A:
USD50,000.
"MINIMUM TRANSFER AMOUNT" means with respect to Party B:
Not applicable.
(D) ROUNDING The Delivery Amount and the Return Amount will be
rounded up and down respectively to the nearest integral
multiple of USD10,000, provided that this "Rounding"
provision shall not apply in respect of any Return Amount
payable in respect of any date on which Party B's Exposure
is less than or equal to zero.
(c) VALUATION AND TIMING.
(i) "VALUATION AGENT" means Party A. Calculations by Party A will be
made by reference to commonly accepted market sources.
(ii) "VALUATION DATE" means,
(A) in the event that (1) no Collateralization Event has
occurred, or has occurred but is not continuing, (2) a
Collateralization Event has occurred other than pursuant to
Part 5(b)(1)(C) and is continuing, or (3) two or more
Collateralization Events have occurred pursuant to Part
5(b)(1)(C) and any other subparagraph of Part 5(b)(1) and
are continuing, each Local Business Day which, if treated
as a Valuation Date, would result in a Delivery Amount or a
Return Amount; and
(B) in the event that a Collateralization Event has occurred
solely pursuant to Part 5(b)(1)(C) and is continuing, or a
Ratings Event has occurred and Party A has not obtained a
substitute counterparty as set forth in Part 5(b)(3) the
last Local Business Day of each calendar week.
(iii) "VALUATION TIME" means the close of business in the city of the
Valuation Agent on the Local Business Day before the Valuation Date
or date of calculation, as applicable, provided that the
calculations of Value and Exposure will be made as of approximately
the same time on the same date.
(iv) "NOTIFICATION TIME" means 4:00 p.m., London time, on a Local
Business Day.
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES.
No events shall constitute a "Specified Condition."
(e) SUBSTITUTION.
(i) "SUBSTITUTION DATE" has the meaning specified in Paragraph 4(d)(ii).
(ii) CONSENT. The Pledgor must obtain the Secured Party's prior consent
to any substitution pursuant to Paragraph 4(d) and shall give to the
Secured Party not less than two (2) Local Business Days' notice
thereof specifying the items of Posted Credit Support intended for
substitution.
G-24
(f) DISPUTE RESOLUTION.
(i) "RESOLUTION TIME" means 4:00 p.m. London time on the Local Business
Day following the date on which the notice of the dispute is given
under Paragraph 5.
(ii) VALUE. For the purpose of Paragraphs 5(i)(C) and 5(ii), on any date,
the Value of Eligible Collateral and Posted Collateral will be
calculated as follows:
(A) with respect to any Cash; the amount thereof; and
(B) with respect to any Eligible Collateral comprising
securities; the sum of (a)(x) the last bid price on such
date for such securities on the principal national
securities exchange on which such securities are listed,
multiplied by the applicable Valuation Percentage or (y)
where any such securities are not listed on a national
securities exchange, the bid price for such securities
quoted as at the close of business on such date by any
principal market maker for such securities chosen by the
Valuation Agent, multiplied by the applicable Valuation
Percentage or (z) if no such bid price is listed or quoted
for such date, the last bid price listed or quoted (as the
case may be), as of the day next preceding such date on
which such prices were available; multiplied by the
applicable Valuation Percentage; plus (b) the accrued
interest on such securities (except to the extent that such
interest shall have been paid to the Pledgor pursuant to
Paragraph 6(d)(ii) or included in the applicable price
referred to in subparagraph (a) above) as of such date.
(iii) ALTERNATIVE. The provisions of Paragraph 5 will apply provided the
obligation of the appropriate party to deliver the undisputed amount
to the other party will not arise prior to the time that would
otherwise have applied to the Transfer pursuant to, or deemed made,
under Paragraph 3 if no dispute had arisen.
(g) HOLDING AND USING POSTED COLLATERAL.
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS:
The Trustee (as defined in the PSA) will be entitled to hold Posted
Collateral pursuant to Paragraph 6(b).
(ii) USE OF POSTED COLLATERAL. The provisions of Paragraph 6(c) will not
apply to Party B. Therefore, Party B will not have any of the rights
specified in Paragraph 6(c)(i) or 6(c)(ii).
(h) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) INTEREST RATE. The "INTEREST RATE" will be the annualized rate of
return actually achieved on Posted Collateral in the form of Cash
during the relevant Interest Period.
(ii) TRANSFER OF INTEREST AMOUNT. The Transfer of the Interest Amount
will be made on any Local Business Day on which Posted Collateral in
the form of Cash is Transferred to the Pledgor pursuant to Paragraph
3(b).
(iii) ALTERNATIVE TO INTEREST AMOUNT. The provisions of Paragraph 6(d)(ii)
will apply and for the purposes of calculating the Interest Amount
the amount of interest calculated for each day of the Interest
Period shall be compounded daily.
(i) ADDITIONAL REPRESENTATION(S).
There are no additional representations by either party.
(j) DEMANDS AND NOTICES.
G-25
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement, save that any demand,
specification or notice:
(i) shall be given to or made at the following addresses:
If to Party A:
Address: One Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Telephone: 00 00 0000 0000
Facsimile: 44 20 7883 7987
Attention: Collateral Management Unit
If to Party B:
As set forth in Part 4(a) of the Schedule;
or at such other address as the relevant party may from time to time
designate by giving notice (in accordance with the terms of this
paragraph) to the other party;
(ii) shall (unless otherwise stated in this Annex) be deemed to be
effective at the time such notice is actually received unless such
notice is received on a day which is not a Local Business Day or
after the Notification Time on any Local Business Day in which event
such notice shall be deemed to be effective on the next succeeding
Local Business Day.
(k) ADDRESS FOR TRANSFERS.
Party A: To be notified to Party B by Party A at the time of the request
for the Transfer.
Party B: To be notified to Party A by Party B at the time of the request
for the Transfer.
(l) OTHER PROVISIONS.
(i) ADDITIONAL DEFINITIONS
As used in this Annex:
"EQUIVALENT COLLATERAL" means, with respect to any security
constituting Posted Collateral, a security of the same issuer and,
as applicable, representing or having the same class, series,
maturity, interest rate, principal amount or liquidation value and
such other provisions as are necessary for that security and the
security constituting Posted Collateral to be treated as equivalent
in the market for such securities;
"LOCAL BUSINESS DAY" means: (i) any day on which commercial banks
are open for business (including dealings in foreign exchange and
foreign currency deposits) in London, and (ii) in relation to a
Transfer of Eligible Collateral, a day on which the clearance system
agreed between the parties for the delivery of Eligible Collateral
is open for acceptance and execution of settlement instructions (or
in the case of a Transfer of Cash or other Eligible Collateral for
which delivery is contemplated by other means, a day on which
commercial banks are open for business (including dealings for
foreign exchange and foreign currency deposits) in New York and such
other places as the parties shall agree);
G-26
(ii) TRANSFER TIMING
(a) Paragraph 4(b) shall be deleted and replaced in its
entirety by the following paragraph:
"Subject to Paragraphs 4(a) and 5 and unless otherwise
specified, if a demand for the Transfer of Eligible Credit
Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made
not later than the close of business on the second Local
Business Day thereafter; if a demand is made after the
Notification Time then the relevant Transfer will be made
not later than the close of business on the third Local
Business Day thereafter."
(b) Paragraph 6(d)(1) shall be amended so that the reference
therein to "the following Local Business Day" shall be
replaced by reference to "the second Local Business Day
thereafter".
(iii) EVENTS OF DEFAULT
Paragraph 7 shall be deleted and replaced in its entirety by the
following paragraph:
"For the purposes of Section 5(a)(i) of this Agreement, an Event of
Default will exist with respect to a party if that party fails (or
fails to cause its Custodian) to make, when due, any Transfer of
Posted Credit Support or the Interest Amount, as applicable,
required to be made by it and that failure continues for two Local
Business Days after the notice of that failure is given to that
party".
(iv) RETURN OF FUNGIBLE SECURITIES
In lieu of returning to the Pledgor pursuant to Paragraphs 3(b),
4(d), 5 and 8(d) any Posted Collateral comprising securities the
Secured Party may return Equivalent Collateral.
(v) COVENANTS OF THE PLEDGOR
So long as the Agreement is in effect, the Pledgor covenants that
it will keep the Posted Collateral free from all security interests
or other encumbrances created by the Pledgor, except the security
interest created hereunder and any security interests or other
encumbrances created by the Secured Party; and will not sell,
transfer, assign, deliver or otherwise dispose of, or grant any
option with respect to any Posted Collateral or any interest
therein, or create, incur or permit to exist any pledge, lien,
mortgage, hypothecation, security interest, charge, option or any
other encumbrance with respect to any Posted Collateral or any
interest therein, without the prior written consent of the Secured
Party.
(vi) NO COUNTERCLAIM
A party's rights to demand and receive the Transfer of Eligible
Collateral as provided hereunder and its rights as Secured Party
against the Posted Collateral or otherwise shall be absolute and
subject to no counterclaim, set-off, deduction or defense in favor
of the Pledgor except as contemplated in Sections 2 and 6 of the
Agreement and Paragraph 8 of this Annex.
(vii) HOLDING COLLATERAL
The Secured Party shall cause any Custodian appointed hereunder to
open and maintain a segregated account and to hold, record and
identify all the Posted Collateral in such segregated account and,
subject to Paragraphs 6(c) and 8(a), such Posted Collateral shall
at all times be and remain the property of the Pledgor and shall at
no time constitute the property of, or be commingled with the
property of, the Secured Party or the Custodian.
(viii) SECURITY AND PERFORMANCE
G-27
Eligible Collateral Transferred to the Secured Party constitutes
security and performance assurance without which the Secured Party
would not otherwise enter into and continue any and all
Transactions.
(ix) AGREEMENT AS TO SINGLE SECURED PARTY AND PLEDGOR
Party A and Party B agree that, notwithstanding anything to the
contrary in the recital to this Annex, Paragraph 1(b), Paragraph 2
or the definitions in Paragraph 12, (a) the term "SECURED PARTY" as
used in this Annex means only Party B, (b) the term "PLEDGOR" as
used in this Annex means only Party A, (c) only Party A makes the
pledge and grant in Paragraph 2, the acknowledgment in the final
sentence of Paragraph 8(a) and the representations in Paragraph 9
and (d) only Party A will be required to make Transfers of Eligible
Credit Support hereunder.
(x) EXTERNAL VERIFICATION OF XXXX-TO-MARKET VALUATIONS.
Every month after a Collateralization Event has occurred pursuant
to Part 5(b)(1)(C) and is continuing, then, unless otherwise agreed
in writing with S&P, Party A will verify its determination of
Exposure of the Transaction on the next Valuation Date by seeking
quotations from two (2) Reference Market-makers for their
determination of Exposure of the Transaction on such Valuation Date
and the Valuation Agent will use the greater of either (a) its own
determination or (b) the highest quotation for a Reference
Market-maker, if applicable, for the next Valuation Date; provided,
that this Paragraph 13(l)(xi) shall only apply to the extent that
the Offered Certificates outstanding at such time (as defined in
the PSA) are rated higher by S&P than the S&P L-T Rating of Party
A; and provided further, that Party A shall not seek verification
of its determination of Exposure as described above from the same
Reference Market-maker more than four times in any twelve-month
period.
G-28
CREDIT SUISSE FIRST BOSTON LONG BEACH MORTGAGE LOAN TRUST
INTERNATIONAL 2005-WL2
BY DEUTSCHE BANK NATIONAL TRUST COMPANY,
NOT IN ITS INDIVIDUAL CAPACITY BUT
SOLELY AS TRUSTEE ON BEHALF OF LONG
BEACH MORTGAGE LOAN TRUST 2005-WL2
By:________________________________ By:________________________________
Name: Name:
Title: Authorized Signatory Title:
By:________________________________ By:________________________________
Name: Name:
Title: Authorized Signatory Title:
G-29
EXHIBIT H
FORM OF LOST NOTE AFFIDAVIT
Personally appeared before me the undersigned authority to administer
oaths, ________________ who first being duly sworn deposes and says: Deponent is
____________________ of ___________________________, successor by merger to
_________________ ("Seller") and who has personal knowledge of the facts set out
in this affidavit.
On ____________,_____________________ did execute and deliver a promissory note
in the principal amount of $_________________.
That said note has been misplaced or lost through causes unknown and is
presently lost and unavailable after diligent search has been made. Seller's
records show that an amount of principal and interest on said note is still
presently outstanding, due, and unpaid, and Seller is still owner and holder in
due course of said lost note.
Seller executes this Affidavit for the purpose of inducing Deutsche Bank
National Trust Company, as Trustee on behalf of Long Beach Mortgage Loan Trust
2005-WL2, to accept the transfer of the above described loan from Seller.
Seller agrees to indemnify Deutsche Bank National Trust Company, Long
Beach Securities Corp. and Long Beach Mortgage Company harmless for any losses
incurred by such parties resulting from the above described promissory note has
been lost or misplaced.
By:____________________
____________________
STATE OF )
) SS:
COUNTY OF )
On this ______ day of ______________, 20_, before me, a Notary Public, in
and for said County and State, appeared ____________________, who acknowledged
the extension of the foregoing and who, having been duly sworn, states that any
representations therein contained are true.
Witness my hand and Notarial Seal this _________ day of 20__.
___________________________
___________________________
My commission expires _______________.
H-1
EXHIBIT I
FORM OF ERISA REPRESENTATION
[DATE]
Long Beach Securities Corp.
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Long Beach Mortgage Company
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: Long Beach Mortgage Loan Trust 2005-WL2,
Asset-Backed Certificates, Series 2005-WL2
Ladies and Gentlemen:
___________________ (the "Transferee") intends to acquire from
__________________ (the "Transferor") $____________ Initial Certificate
Principal Balance of the Class [____] Certificate of Long Beach Mortgage Loan
Trust 2005-WL2, Asset-Backed Certificates, Series 2005-WL2, (the
"Certificates"), issued pursuant to a Pooling and Servicing Agreement dated as
of August 1, 2005 (the "Agreement") among Long Beach Securities Corp., as
depositor (the "Depositor"), Long Beach Mortgage Company, as master servicer
(the "Master Servicer") and Deutsche Bank National Trust Company, as trustee
(the "Trustee"). Capitalized terms used herein and not otherwise defined shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to, and covenants with the
Depositor, the Trustee and the Master Servicer that:
(A) In the case of the Class C Certificates, the Class P Certificates and the
Residual Certificates the following statements in either (1) or (2) are
accurate:
_____ (1) The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and bank collective
investment funds and insurance company general or separate accounts in
which such plans, accounts or arrangements are invested, that is subject
to Section 406 of ERISA or Section 4975 of the Internal Revenue Code of
1986 (the "Code") (any of the foregoing, a "Plan"), (ii) are not being
acquired with "plan assets" of a Plan within the meaning of the Department
of Labor ("DOL") regulation, 29 C.F.R. 'SS' 2510.3-101, and (iii) will not
be transferred to any entity that is deemed to be investing in plan assets
within the meaning of the DOL regulation at 29 C.F.R. 'SS' 2510.3-101; or
I-1
_____ (2) [WITH RESPECT TO THE CLASS C CERTIFICATES AND THE CLASS P
CERTIFICATES ONLY] The Transferee will provide an Opinion of Counsel to
the Depositor, the Trustee and the Master Servicer which establishes to
the satisfaction of the Depositor, the Trustee and the Master Servicer
that the purchase of such Certificates is permissible under applicable
law, will not constitute or result in any prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Depositor, the
Trustee, the Master Servicer, or the Trust Fund to any obligation or
liability (including obligations or liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in this Agreement;
(B) In the case of the Class A Certificates, the Mezzanine Certificates and the
Class B Certificates either (i) such Transferee is neither a Plan nor a Person
acting on behalf of any such Plan or using the assets of any such Plan to effect
such transfer or (ii) the acquisition and holding of the such Certificate are
eligible for exemptive relief under Prohibited Transaction Class Exemption
("PTCE") 00-00, XXXX 00-0, XXXX 91-38, PTCE 95-60 or PTCE 96-23.
IN WITNESS WHEREOF, the Transferee executed this certificate.
____________________________________
[Transferee]
By: ________________________________
Name: ______________________________
Title: _____________________________
I-2
EXHIBIT J-1A
FORM OF CLASS B CERTIFICATE TRANSFEROR CERTIFICATE
[Date]
[TRUSTEE]
Re: Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates Series 2005-WL2 (the "Class B Certificates")
Ladies and Gentlemen:
This certificate is being delivered in connection with the sale by
[___________________] (the "Transferor") to [_______________] (the "Transferee")
of Class B Certificates having an Initial Certificate Principal Balance as of
August 30, 2005 (the "Closing Date") of [$____________] (the "Transferred
Certificates"). The Class B Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement dated
as of August 1, 2005 (the "Agreement") among Long Beach Securities Corp., as
depositor (the "Depositor"), Long Beach Mortgage Company, as master servicer
(the "Master Servicer") and Deutsche Bank National Trust Company, as trustee
(the "Trustee"). All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Agreement. The Transferor
hereby certifies, represents and warrants to you, as Trustee, and for the
benefit of the Trustee, the Depositor, the Trust Fund and the Transferee, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Class B Certificates
free from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation by means of
general advertising or in any other manner, or (e) taken any other action,
which (in the case of any of the acts described in clauses (a) through (e)
hereof) would constitute a distribution of any Transferred Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Transferred Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of any Transferred Certificate
pursuant to the Securities Act or any state securities laws.
J-1A-1
3. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A
("Rule 144A") under the Securities Act (a "Qualified Institutional Buyer")
purchasing for its own account or for the account of a Qualified
Institutional Buyer. In determining whether the Transferee is a Qualified
Institutional Buyer, the Transferor and any person acting on behalf of the
Transferor in this matter have relied upon the following method(s) of
establishing the Transferee's ownership and discretionary investments of
securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a
date within 16 months preceding the date of sale of the
Transferred Certificate in the case of a U.S. purchaser and
within 18 months preceding such date of sale for a foreign
purchaser; or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state, or
local governmental agency or self-regulatory organization, or
with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16
months preceding the date of sale of the Transferred
Certificate in the case of a U.S. purchaser and within 18
months preceding such date of sale for a foreign purchaser; or
___ (c) The most recent publicly available information appearing in
a recognized securities manual, which information is as of a
date within 16 months preceding the date of sale of the
Transferred Certificate in the case of a U.S. purchaser and
within 18 months preceding such date of sale for a foreign
purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer
of the Transferee, specifying the amount of securities owned
and invested on a discretionary basis by the Transferee as of a
specific date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies", as that term is
defined in Rule 144A, a certification by an executive officer
of the investment adviser specifying the amount of securities
owned by the "family of investment companies" as of a specific
date on or since the close of the Transferee's most recent
fiscal year.
4. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount of
securities owned and invested on a discretionary basis by an entity for
purposes of establishing whether such entity is a Qualified Institutional
Buyer:
J-1A-2
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
if the Transferee is a dealer securities that are part of an
unsold allotment to or subscription by the Transferee as a
participant in a public offering; securities of issuers that
are part of the Transferee's "family of investment companies",
if the Transferee is a registered investment company; bank
deposit notes and certificates of deposit; loan participations;
repurchase agreements; securities owned but subject to a
repurchase agreement; and currency, interest rate and commodity
swaps;
(b) the aggregate value of the securities shall be the cost of
such securities, except where the entity reports its securities
holdings in its financial statements on the basis of their
market value, and no current information with respect to the
cost of those securities has been published, in which case the
securities may be valued at market;
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements
prepared in accordance with generally accepted accounting
principles may be included if the investments of such
subsidiaries are managed under the direction of the entity,
except that, unless the entity is a reporting company under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, securities owned by such subsidiaries may not be
included if the entity itself is a majority-owned subsidiary
that would be included in the consolidated financial statements
of another enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has furnished,
or caused to be furnished, to the Transferee all information requested by
the Transferee regarding (a) the Transferred Certificates and payments
thereon, (b) the nature and performance of the Mortgage Loans, (c) the
Agreement, and (d) any credit enhancement mechanism associated with the
Transferred Certificates.
Very truly yours,
_______________________________
(Transferor)
By: _________________________
Name:
Title:
J-1A-3
EXHIBIT J-1B
FORM OF CLASS B CERTIFICATE TRANSFEREE CERTIFICATE
[Date]
[TRUSTEE]
Re: Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed
Certificates Series 2005-WL2(the "Class B Certificates")
Ladies and Gentlemen:
August 30, 2005___________________ (the "Transferor") Class B Certificates
having an Initial Certificate Principal Balance as of August 30, 2005 (the
"Closing Date") of [$____________] (the "Transferred Certificates"). The Class B
Certificates, including the Transferred Certificates, were issued pursuant to
the Pooling and Servicing Agreement dated as of August 1, 2005 (the "Agreement")
among Long Beach Securities Corp., as depositor (the "Depositor"), Long Beach
Mortgage Company, as master servicer (the "Master Servicer") and Deutsche Bank
National Trust Company, as trustee (the "Trustee"). All capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Trustee, and for the benefit of the Trustee, the Depositor, the Trust Fund and
the Transferor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it of the Transferred
Certificates is being made in reliance on Rule 144A. The Transferee is acquiring
the Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases for its
own account or for the account of a Qualified Institutional Buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A.
2. The Transferee has been furnished with all information requested by
it regarding (a) the Transferred Certificates and payments thereon, (b) the
nature and performance of the Mortgage Loans, (c) the Agreement, and (d) any
credit enhancement mechanism associated with the Transferred Certificates.
3. The Transferee represents that any of (a) or (b) is satisfied, as
marked below:
____ a. it is neither: (1) an employee benefit plan, or other
retirement arrangement, including individual retirement accounts and
annuities, Xxxxx plans and collective investment funds and separate
accounts in which such plans, accounts or arrangements are invested,
including, without limitation, insurance
J-1B-1
company general accounts, that is subject to ERISA or the Code
(each, a "Plan"), nor (2) any Person who is directly or indirectly
purchasing such Transferred Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan
assets" (as defined under the DOL Regulation at 29 C.F.R. Section
2510.3-101) of a Plan; or
____ b. the Transferee is an insurance company and (a) the source
of funds used to purchase or hold such Transferred Certificate (or
interest therein) is an "insurance company general account" (as
defined in U.S. Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60, and (c) the conditions set forth in
Sections I and III of PTCE 95-60 have been satisfied.
Very truly yours,
_______________________________
(Transferee)
By: _________________________
Name:
Title:
X-0X-0
XXXXX 0 XX XXXXXXX X-0X
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Trustee], as Trustee, with respect to the Class
B Certificates being transferred (the "Transferred Certificates") as described
in the Transferee Certificate to which this certification relates and to which
this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ BANK. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificate in the case of a U.S. bank, or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, and not more than 18 months preceding such
date of sale for a foreign bank or equivalent institution.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date
J-1B-3
of sale of the Transferred Certificate in the case of a U.S. savings
and loan association, building and loan association, cooperative
bank, homestead association or similar institution, and not more
than 18 months preceding such date of sale for a foreign savings and
loan association or equivalent institution.
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ OTHER. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)__________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) if the
Transferee is a dealer, securities that are part of an unsold allotment to or
subscription by the Transferee as a participant in a public offering, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any of the
securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's
J-1B-4
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
__________________________________
Print Name of Transferee
By: ____________________________
Name:
Title:
Date:
X-0X-0
XXXXX 0 XX XXXXXXX X-0X
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Trustee], as Trustee, with respect to the Class
B Certificates being transferred (the "Transferred Certificates") as described
in the Transferee Certificate to which this certification relates and to which
this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined
in Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked below,
the Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
[$__________________] in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate [$_____________] in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
J-1B-6
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
_____________________________________
Print Name of Transferee or Adviser
By: _______________________________
Name:
Title:
IF AN ADVISER:
_____________________________________
Print Name of Transferee
Date:
J-1B-7
EXHIBIT J-2
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Long Beach Securities Corp.
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: Long Beach Mortgage Loan Trust 2005-WL2,
Asset-Backed Certificates Series 2005-WL2
Ladies and Gentlemen:
In connection with our acquisition of $______ Initial Certificate
Principal Balance of the Class [__] Certificate of Long Beach Mortgage Loan
Trust 2005-WL2 Asset-Backed Certificates, Series 2005-WL2 (the "Certificates"),
issued pursuant to a Pooling and Servicing Agreement dated as of August 1, 2005
(the "Agreement") among Long Beach Securities Corp., as depositor (the
"Depositor"), Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee"),
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) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of any such plan, (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
J-2-1
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 Agreement.
Very truly yours,
[NAME OF TRANSFEREE]
By: ______________________________
Authorized Officer
J-2-2
FORM OF RULE 144A INVESTMENT LETTER
[DATE]
Long Beach Securities Corp.
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: Long Beach Mortgage Loan Trust 2005-WL2,
Asset-Backed Certificates Series 2005-WL2
Ladies and Gentlemen:
In connection with our acquisition of $______ Initial Certificate
Principal Balance of the Class [__] Certificate of Long Beach Mortgage Loan
Trust 2005-WL2 Asset-Backed Certificates, Series 2005-WL2 (the "Certificates"),
issued pursuant to a Pooling and Servicing Agreement dated as of August 1, 2005
(the "Agreement") among Long Beach Securities Corp., as depositor (the
"Depositor"), Long Beach Mortgage Company, as master servicer (the "Master
Servicer") and Deutsche Bank National Trust Company, as trustee (the "Trustee"),
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 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, (c) we are not an employee benefit plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended, or a plan that is
subject to Section 4975 of the Internal Revenue Code of 1986, as amended, nor
are we acting on behalf of any such plan, (d) 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 Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates, (e) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
J-2-3
the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
Very truly yours,
[NAME OF TRANSFEREE]
By: ______________________________
Authorized Officer
X-0-0
XXXXX 0 XX XXXXXXX X-0
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis at least $100,000,000 in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Buyer satisfies the criteria in the category marked below.
_____ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
_____ Bank. The Buyer (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District of
Columbia, the business of which is substantially confined to banking and
is supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the
Certificates in the case of a U.S. bank or a banking institution organized
under the laws of any State, U.S. territory or the District of Columbia,
and not more than 18 months preceding such date of sale for a foreign bank
or equivalent institution.
_____ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the
Certificates in the case of a U.S. savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, and not more than 18 months preceding such date of sale for a
foreign savings and loan association, or equivalent institution.
J-2-5
_____ Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar official
or agency of a State, U.S. territory or the District of Columbia.
_____ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or instrumentality
of the State or its political subdivisions, for the benefit of its
employees.
_____ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
_____ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisers Act of 1940.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection (a)(1)
of Rule 144A pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather than this Annex 1.)
_________________
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) if the Buyer is a dealer,
securities that are part of an unsold allotment to or subscription by the Buyer
as a participant in a public offering, (iii) bank deposit notes and certificates
of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer, except the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has been
published, in which case, the securities were valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities owned
by subsidiaries of the Buyer, but only if such subsidiaries are consolidated
with the Buyer in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under the Buyer's direction. However, such securities were not included
if the Buyer is a majority-owned, consolidated subsidiary of another enterprise
and the Buyer is not itself a reporting company under the Securities Exchange
Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on
J-2-6
the statements made herein because one or more sales to the Buyer may be in
reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Certificates only
for the Buyer's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each case
where the Buyer is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Buyer through one or more of the
appropriate methods contemplated by Rule 144A.
7. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
__________________________________
Print Name of Buyer
By: ______________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
X-0-0
XXXXX 0 XX XXXXXXX X-0
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Certificates or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone owned and/or invested on a
discretionary basis, or the Buyer's Family of Investment Companies, owned at
least $100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's Family of
Investment Companies, the cost of such securities was used, except where the
Buyer or any member of the Buyer's Family of Investment Companies, as the case
may be, reports its securities holdings in its financial statements on the basis
of their market value, and no current information with respect to the cost of
those securities has been published, in which case, the securities of such
entity were valued at market.
_____ The Buyer owned and/or invested on a discretionary basis, $_________ in
securities (other than the excluded securities referred to below) as of the end
of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
_____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $___________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii)
J-2-8
bank deposit notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Buyer, or owned by the Buyer's Family of Investment
Companies, the securities referred to in this paragraph were excluded.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A.
___ ___ Will the Buyer be purchasing the Certificates only
for the Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each case
where the Buyer is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Buyer through one or more of the
appropriate methods contemplated by Rule 144A.
7. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
__________________________________
Print Name of Buyer or Adviser
By: ______________________________
Name:_____________________________
Title:____________________________
IF AN ADVISER:
__________________________________
Print Name of Buyer
Date:_____________________________
J-2-9
EXHIBIT K
FORM OF CLASS R CERTIFICATE, CLASS R-CX CERTIFICATE
AND CLASS R-PX CERTIFICATE TRANSFER AFFIDAVIT
TRANSFER AFFIDAVIT AND AGREEMENT
LONG BEACH MORTGAGE LOAN TRUST 2005-WL2,
ASSET-BACKED CERTIFICATES, SERIES 2005-WL2
STATE OF ____________ )
)ss.:
COUNTY OF ___________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ________________________, the
proposed Transferee of an Ownership Interest in the Class [___] Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, dated as
of August 1, 2005 (the "Agreement"), relating to the above-referenced
Certificates, among Long Beach Securities Corp., as depositor (the "Depositor"),
Long Beach Mortgage Company, as master servicer (the "Master Servicer") and
Deutsche Bank National Trust Company, as trustee (the "Trustee"). Capitalized
terms used, but not defined herein shall have the meanings ascribed to such
terms in the Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised and understands that (i) a tax will
be imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman) of
a Person that is not a Permitted Transferee, on the agent; and (iii) the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
subsequent Transferee furnished to such Person an affidavit that such subsequent
Transferee is a Permitted Transferee and, at the time of Transfer, such Person
does not have actual knowledge that the affidavit is false.
4. The Transferee has been advised and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with respect to
which the record holder furnishes to the pass-through entity an affidavit that
such record holder is a Permitted Transferee and the pass-through entity does
not have actual
K-1
knowledge that such affidavit is false. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(d) of the
Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(d) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit L to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is _____________.
9. The Transferee is a U.S. Person as defined in Code Section 7701(a)
(30).
10. The Transferee is aware that the Certificate 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 impede the assessment
or collection of tax. The Transferee understands that, as the holder of a
noneconomic residual interest, the Transferee may incur tax liabilities in
excess of any cash flows generated by the Certificates. The Transferee intends
to pay taxes associated with holding the Certificate as they become due.
11. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan that is subject to Section 4975 of the Code, nor is it acting on
behalf of such a plan.
K-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
Vice President, attested by its Secretary, this ___ day of [__________].
[TRANSFEREE NAME]
By: ______________________________
Name: ____________________________
Title: _________________________________
[Corporate Seal]
ATTEST:
_________________________________
Secretary
On [__________, 200_] before me, _____________________________, personally
appeared _______________________________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature _________________________________
(Seal)
K-3
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Long Beach Securities Corp.
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: Long Beach Mortgage Loan Trust 2005-WL2,
Asset-Backed Certificates Series 2005-WL2
Ladies and Gentlemen:
In connection with our disposition of the Class [__] Certificates (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement dated as
of August 1, 2005 (the "Agreement") among Long Beach Securities Corp., as
depositor (the "Depositor"), Long Beach Mortgage Company, as master servicer
(the "Master Servicer") and Deutsche Bank National Trust Company, as trustee
(the "Trustee") we certify that (a) we understand that the Certificates have not
been registered under the Securities Act of 1933, as amended (the "Act"), and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to, or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action which would result in, a violation of
Section 5 of the Act, (c) to the extent we are disposing of the Class [__]
Certificate, we have no knowledge that the Transferee is not a Permitted
Transferee and (d) no purpose of the proposed disposition of the Class [__]
Certificate is to impede the assessment or collection of tax.
Very truly yours,
TRANSFEROR
By: ______________________________
Name: ____________________________
Title: ___________________________
L-1
EXHIBIT M
FORM OF OFFICER'S CERTIFICATE RE WAIVER OF PREPAYMENT CHARGES
I, ____________, hereby certify that I am a duly appointed
___________________of Long Beach Mortgage Company, a Delaware corporation (the
"Company"), and further certify, on behalf of the Company, that, to my
knowledge, with respect to the Mortgage Loans listed on Schedule I attached to
this certificate, the conditions set forth in Section 2.04(a)(vii) and Section
3.07 of the Pooling and Servicing Agreement dated as of August 1, 2005 among
Long Beach Securities Corp., as depositor, the Company, as master servicer and
Deutsche Bank National Trust Company, as trustee (the "Agreement"), have been
met with respect to all waivers of the Prepayment Charges during the immediately
preceding Prepayment Period. Capitalized terms used in this certificate without
definition have the meaning given to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
[______________], 200[__].
By: ___________________________
Name: ___________________________
Title: ___________________________
M-1
SCHEDULE I
PREPAYMENT CHARGE SCHEDULE
AVAILABLE UPON REQUEST
SCHEDULE II
CAP PREMIUM SCHEDULE
GROUP I SENIOR CAP GROUP I SENIOR
SCHEDULED NOTIONAL GROUP I SENIOR MAXIMUM LIBOR
DISTRIBUTION DATE AMOUNT ($) STRIKE RATE (%) RATE (%)
------------------------ ------------------ --------------- --------------
October 25, 2005........ 346,249,529 6.75% 10.23%
November 25, 2005....... 340,911,708 6.52% 10.23%
December 25, 2005....... 334,741,471 6.75% 10.23%
January 25, 2006........ 327,753,440 6.53% 10.23%
February 25, 2006....... 319,967,179 6.53% 10.23%
March 25, 2006.......... 311,406,544 7.26% 10.23%
April 25, 2006.......... 302,100,480 6.53% 10.23%
May 25, 2006............ 292,082,635 6.76% 10.23%
June 25, 2006........... 281,463,608 6.53% 10.23%
July 25, 2006........... 271,123,531 6.77% 10.23%
August 25, 2006......... 261,061,813 6.54% 10.23%
September 25, 2006...... 251,270,819 6.54% 10.23%
October 25, 2006........ 241,743,272 6.77% 10.23%
November 25, 2006....... 232,472,088 6.54% 10.23%
December 25, 2006....... 223,450,373 6.77% 10.23%
January 25, 2007........ 214,671,419 6.55% 10.23%
February 25, 2007....... 206,128,699 6.55% 10.23%
March 25, 2007.......... 197,815,862 7.28% 10.23%
April 25, 2007.......... 189,726,725 6.55% 10.23%
May 25, 2007............ 181,855,274 6.78% 10.23%
June 25, 2007........... 173,418,118 7.98% 10.23%
July 25, 2007........... 157,270,702 8.25% 10.23%
August 25, 2007......... 142,060,791 7.97% 10.23%
September 25, 2007...... 127,800,999 7.96% 10.23%
October 25, 2007........ 114,893,895 8.22% 10.23%
November 25, 2007....... 107,549,299 7.94% 10.23%
December 25, 2007....... 100,501,149 8.95% 10.23%
January 25, 2008........ 93,694,759 8.65% 10.23%
February 25, 2008....... 87,121,182 8.65% 10.23%
March 25, 2008.......... 80,772,353 9.26% 10.23%
April 25, 2008.......... 74,640,490 8.66% 10.23%
May 25, 2008............ 68,718,082 9.15% 10.23%
June 25, 2008........... 63,000,073 9.56% 10.23%
July 25, 2008........... 57,477,528 9.89% 10.23%
August 25, 2008......... 52,143,305 9.56% 10.23%
September 25, 2008...... 46,990,861 9.55% 10.23%
October 25, 2008........ 46,990,861 9.87% 10.23%
November 25, 2008....... 46,990,861 9.60% 10.23%
II-1
GROUP II SENIOR CAP GROUP II SENIOR
SCHEDULED NOTIONAL GROUP II SENIOR MAXIMUM LIBOR
DISTRIBUTION DATE AMOUNT ($) STRIKE RATE (%) RATE (%)
------------------------ ------------------- --------------- ---------------
October 25, 2005........ 667,906,580 6.80% 10.24%
November 25, 2005....... 657,636,892 6.57% 10.24%
December 25, 2005....... 645,757,883 6.81% 10.24%
January 25, 2006........ 632,298,562 6.58% 10.24%
February 25, 2006....... 617,294,969 6.58% 10.24%
March 25, 2006.......... 600,793,544 7.31% 10.24%
April 25, 2006.......... 582,850,041 6.58% 10.24%
May 25, 2006............ 563,529,324 6.81% 10.24%
June 25, 2006........... 543,038,157 6.59% 10.24%
July 25, 2006........... 523,094,576 6.82% 10.24%
August 25, 2006......... 503,687,560 6.59% 10.24%
September 25, 2006...... 484,802,647 6.59% 10.24%
October 25, 2006........ 466,425,799 6.82% 10.24%
November 25, 2006....... 448,543,357 6.59% 10.24%
December 25, 2006....... 431,142,028 6.83% 10.24%
January 25, 2007........ 414,208,877 6.60% 10.24%
February 25, 2007....... 397,731,319 6.60% 10.24%
March 25, 2007.......... 381,697,103 7.34% 10.24%
April 25, 2007.......... 366,094,308 6.61% 10.24%
May 25, 2007............ 350,911,336 6.83% 10.24%
June 25, 2007........... 334,793,438 8.02% 10.24%
July 25, 2007........... 303,355,596 8.29% 10.24%
August 25, 2007......... 273,845,157 8.00% 10.24%
September 25, 2007...... 246,182,442 8.00% 10.24%
October 25, 2007........ 221,049,730 8.26% 10.24%
November 25, 2007....... 206,909,648 7.98% 10.24%
December 25, 2007....... 193,282,110 9.00% 10.24%
January 25, 2008........ 180,125,631 8.70% 10.24%
February 25, 2008....... 167,420,269 8.70% 10.24%
March 25, 2008.......... 155,150,371 9.31% 10.24%
April 25, 2008.......... 143,300,834 8.71% 10.24%
May 25, 2008............ 131,857,080 9.19% 10.24%
June 25, 2008........... 120,808,929 9.63% 10.24%
July 25, 2008........... 110,139,007 9.95% 10.24%
August 25, 2008......... 99,833,851 9.61% 10.24%
September 25, 2008...... 89,880,834 9.60% 10.24%
October 25, 2008........ 89,880,834 9.93% 10.24%
November 25, 2008....... 89,880,834 9.65% 10.24%
II-2
GROUP III SENIOR GROUP III SENIOR
SCHEDULED NOTIONAL GROUP III SENIOR MAXIMUM LIBOR
DISTRIBUTION DATE AMOUNT ($) STRIKE RATE (%) RATE (%)
------------------------ ------------------ ---------------- ----------------
October 25, 2005........ 771,834,135 6.75% 10.23%
November 25, 2005....... 759,740,294 6.52% 10.23%
December 25, 2005....... 745,751,322 6.75% 10.23%
January 25, 2006........ 729,901,639 6.53% 10.23%
February 25, 2006....... 712,234,590 6.53% 10.23%
March 25, 2006.......... 692,805,852 7.26% 10.23%
April 25, 2006.......... 671,682,172 6.53% 10.23%
May 25, 2006............ 648,941,191 6.76% 10.23%
June 25, 2006........... 625,020,983 6.53% 10.23%
July 25, 2006........... 601,745,295 6.77% 10.23%
August 25, 2006......... 579,102,975 6.54% 10.23%
September 25, 2006...... 557,076,823 6.54% 10.23%
October 25, 2006........ 535,650,108 6.77% 10.23%
November 25, 2006....... 514,806,552 6.54% 10.23%
December 25, 2006....... 494,530,319 6.77% 10.23%
January 25, 2007........ 474,806,097 6.55% 10.23%
February 25, 2007....... 455,618,796 6.55% 10.23%
March 25, 2007.......... 436,953,832 7.28% 10.23%
April 25, 2007.......... 418,797,018 6.55% 10.23%
May 25, 2007............ 401,134,550 6.78% 10.23%
June 25, 2007........... 380,196,658 7.98% 10.23%
July 25, 2007........... 342,245,584 8.25% 10.23%
August 25, 2007......... 306,646,313 7.97% 10.23%
September 25, 2007...... 273,324,493 7.96% 10.23%
October 25, 2007........ 244,371,431 8.22% 10.23%
November 25, 2007....... 227,822,068 7.94% 10.23%
December 25, 2007....... 211,902,257 8.95% 10.23%
January 25, 2008........ 196,550,520 8.65% 10.23%
February 25, 2008....... 181,737,962 8.65% 10.23%
March 25, 2008.......... 167,445,583 9.26% 10.23%
April 25, 2008.......... 153,655,051 8.66% 10.23%
May 25, 2008............ 140,348,680 9.15% 10.23%
June 25, 2008........... 127,521,539 9.56% 10.23%
July 25, 2008........... 115,145,183 9.89% 10.23%
August 25, 2008......... 103,202,961 9.56% 10.23%
September 25, 2008...... 91,679,378 9.55% 10.23%
October 25, 2008........ 91,679,378 9.87% 10.23%
November 25, 2008....... 91,679,378 9.60% 10.23%
II-3
SUBORDINATE CAP SUBORDINATE
SCHEDULED NOTIONAL SUBORDINATE MAXIMUM LIBOR
DISTRIBUTION DATE AMOUNT ($) STRIKE RATE (%) RATE (%)
------------------------ ------------------ --------------- ---------------
October 25, 2005........ 599,367,000 5.79% 8.54%
November 25, 2005....... 599,367,000 5.57% 8.54%
December 25, 2005....... 599,367,000 5.80% 8.54%
January 25, 2006........ 599,367,000 5.58% 8.54%
February 25, 2006....... 599,367,000 5.58% 8.54%
March 25, 2006.......... 599,367,000 6.28% 8.54%
April 25, 2006......... 599,367,000 5.58% 8.54%
May 25, 2006............ 599,367,000 5.80% 8.54%
June 25, 2006........... 599,367,000 5.59% 8.54%
July 25, 2006........... 599,367,000 5.81% 8.54%
August 25, 2006......... 599,367,000 5.59% 8.54%
September 25, 2006...... 599,367,000 5.59% 8.54%
October 25, 2006........ 599,367,000 5.80% 8.54%
November 25, 2006....... 599,367,000 5.59% 8.54%
December 25, 2006....... 599,367,000 5.81% 8.54%
January 25, 2007........ 599,367,000 5.59% 8.54%
February 25, 2007....... 599,367,000 5.59% 8.54%
March 25, 2007.......... 599,367,000 6.30% 8.54%
April 25, 2007......... 599,367,000 5.59% 8.54%
May 25, 2007............ 599,367,000 5.81% 8.54%
June 25, 2007........... 599,367,000 6.99% 8.54%
July 25, 2007........... 599,367,000 7.25% 8.54%
August 25, 2007......... 599,367,000 6.97% 8.54%
September 25, 2007...... 599,367,000 6.97% 8.54%
October 25, 2007........ 599,367,000 7.22% 8.54%
November 25, 2007....... 599,367,000 6.95% 8.54%
December 25, 2007....... 599,367,000 7.96% 8.54%
January 25, 2008........ 599,367,000 7.67% 8.54%
February 25, 2008....... 599,367,000 7.67% 8.54%
March 25, 2008.......... 599,367,000 8.26% 8.54%
April 25, 2008.......... 599,367,000 7.71% 8.54%
May 25, 2008............ 599,367,000 8.33% 8.54%
II-4
SCHEDULE III
[RESERVED]
SCHEDULE IV
PMI MORTGAGE LOAN SCHEDULE
NOT APPLICABLE
