EXHIBIT 4.3.4
FORM OF REFERNCE AGREEMENT
(GRANTOR TRUST, FIXED RATE CERTIFICATES, MORTGAGE LOANS)
XXXXXXX XXXXX ASSET BACKED SECURITIES CORP.,
Depositor
[MASTER SERVICER NAME],
Master Servicer
and
[TRUSTEE NAME],
Trustee
REFERENCE AGREEMENT
incorporating by reference
CERTAIN STANDARD TERMS AND CONDITIONS
OF POOLING AND SERVICING
Dated as of [ ], 200[ ]
Conduit Mortgage Pass-Through Certificates, Series ___
[___]% Pass-Through Rate
TABLE OF CONTENTS
Section Page
ARTICLE XI
CONVEYANCE OF TRUST FUND; DESCRIPTION OF THE CERTIFICATES................. 1
SECTION 11.01. Designation..............................................1
SECTION 11.02. Conveyance of Trust Fund; Issuance of Certificates.......1
SECTION 11.03. Delivery of Documents....................................2
SECTION 11.04. Denominations............................................5
SECTION 11.05. Principal Balance........................................5
SECTION 11.06. Distributions on the Certificates........................5
SECTION 11.07. Place and Notice for Final Distribution on
Certificates.............................................5
SECTION 11.08. Pass-Through Rate........................................5
SECTION 11.09. Distribution Dates.......................................5
SECTION 11.10. Record Dates.............................................5
SECTION 11.11. Mortgage Loans...........................................6
SECTION 11.12. Forms Generally..........................................6
SECTION 11.13. Termination at Option of the Depositor...................6
SECTION 11.14. Substitution.............................................6
SECTION 11.15. Wire Transfer Eligibility................................6
SECTION 11.16. Required Rating..........................................6
SECTION 11.17. Pool Insurance Policy....................................6
SECTION 11.18. Special Hazard Insurance Policy..........................7
SECTION 11.19. Mortgagor Bankruptcy Bond................................7
SECTION 11.20. Performance Bond.........................................7
SECTION 11.21. Warranty and Servicing Agreements........................7
SECTION 11.22. Custodial Agreements.....................................7
SECTION 11.23. Retained Yield; Administrative Fee; Servicing
Compensation.............................................7
SECTION 11.24. Cut-off Date.............................................7
SECTION 11.25. Certificate Registrar....................................7
SECTION 11.26. Authenticating Agent.....................................8
SECTION 11.27. Paying Agent.............................................8
SECTION 11.28. Applicability of Certain Provisions of Standard
Terms....................................................8
ARTICLE XII
DEFINITIONS.................................................................8
ARTICLE XIII
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS.............................. 10
SECTION 13.01. Certificate Account..................................... 10
SECTION 13.02. Distributions........................................... 10
SECTION 13.03. Monthly Statements to Certificateholders................ 11
ARTICLE XIV
OPTIONAL TERMINATION....................................................... 12
SECTION 14.01. Repurchase at the Option of the Depositor............... 12
SECTION 14.02. Procedure Upon Optional Termination..................... 12
ARTICLE XV
MISCELLANEOUS.............................................................. 13
SECTION 15.01. Standard Terms.......................................... 13
SECTION 15.02. Ratification of Standard Terms.......................... 14
SECTION 15.03. Amendment............................................... 14
SECTION 15.04. Counterparts............................................ 14
SECTION 15.05. Governing Law........................................... 14
SECTION 15.06. Recordation of Agreement................................ 14
SECTION 15.07. Severability of Provisions ............................. 15
REFERENCE AGREEMENT, dated as of _______________, 20__, by and among
[ ], a Delaware corporation, as Depositor (the "Depositor"), [MASTER SERVICER
NAME], a [ ] corporation, as master servicer (the "Master Servicer"), and
[TRUSTEE NAME], a [ ] banking corporation, as trustee (together with its
successors in trust thereunder as provided in the Agreement referred to below,
the "Trustee").
PRELIMINARY STATEMENT
The Depositor has duly authorized the execution and delivery of this
Reference Agreement and the incorporation herein, to the extent permitted
herein, of the Standard Terms and Provisions of Pooling and Servicing (the
"Standard Terms") attached hereto, to provide for the issuance of its Conduit
Mortgage Pass-Through Certificates, Series, issued as provided herein and
delivered by the Trustee to the Depositor, as provided hereunder. The
Reference Agreement, incorporating the Standard Terms, is sometimes referred
to herein as the Agreement. All references herein to Sections or Articles of
the Agreement shall be construed to mean Sections or Articles of this
Reference Agreement or of the Standard Terms as the Section numbers and
context may require, and capitalized terms used herein shall have the meanings
ascribed to them in the Standard Terms or the Reference Agreement. The
Depositor is the owner of the Mortgage Loans (as hereinafter defined) and the
other property being conveyed by it to the Trustee as part of the Trust Fund
(as hereinafter defined) and has duly authorized the execution and delivery of
this Agreement to provide for the conveyance to the Trustee of the Trust Fund.
All covenants and agreements made by the Depositor herein and in the Standard
Terms are for the benefit and security of the Certificateholders. The
Depositor is entering into this Reference Agreement and the Standard Terms,
and the Trustee is accepting the trusts created hereby and thereby, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as follows:
ARTICLE XI
CONVEYANCE OF TRUST FUND;
DESCRIPTION OF THE CERTIFICATES
SECTION 11.01. Designation. The Certificates shall be designated generally
as the Conduit Mortgage Pass-Through Certificates, Series ______, ______%
Pass-Through Rate (the "Certificates").
SECTION 11.02. Conveyance of Trust Fund; Issuance of Certificates. In exchange
for the Certificates, the Depositor hereby sells, transfers, assigns,
delivers, sets over and otherwise conveys to the Trustee, without recourse,
for the benefit of all present and future Holders of the Certificates, all of
the Depositor's right, title and interest (other than with respect to any
Retained Yield specified in Section 11.22) in and to (a) the Mortgage Loans
listed in Schedule I to this Agreement, which the Depositor causes to be
delivered to the Trustee, together with the Mortgage Files relating to the
Mortgage Loans and the other property in respect of such Mortgage Loans, as
specified in Section 2.01, and the proceeds thereof payable after the Cut-off
Date, net of any amounts payable to the Servicer, the Master Servicer and the
Depositor in accordance with the provisions of the Standard Terms, (b)
property that secured a Mortgage Loan and has been acquired by foreclosure or
deed in lieu of foreclosure, (c) the Performance Bond and the proceeds
thereof, as provided in Section 3.17, (d) the Depositor's rights under the
Warranty and Servicing Agreements with respect to the Mortgage Loans, (e) the
Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of the Agreement, net of amounts payable to the
Servicers, the Master Servicer and the Depositor, as provided in Sections 3.18
and 3.19, and net of any Retained Yield and Administrative Fee payable to the
Depositor, as specified in Sections 3.19 and 11.22, and (f) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
The Trustee acknowledges the transfer and assignment to it
of the Mortgage Loans and the delivery of the Mortgage Files to it (or, with
respect to Mortgage Loans subject to a Custodial Agreement, to the respective
Custodian on its behalf) and the other property included in the Trust Fund,
all to the extent provided above and in Section 2.01, and, concurrently with
such delivery, has delivered to or upon the order of the Depositor, in
exchange for the Mortgage Loans, Certificates duly authenticated and duly
executed by the Trustee in authorized Denominations evidencing the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and
future Holders of the Certifi xxxxx and to perform the duties set forth herein
and in the Standard Terms to the best of its ability, to the end that the
interests of the Holders of the Certificates may be adequately and effectively
protected.
SECTION 11.03. Delivery of Documents. In connection with the foregoing
conveyance, the creation of the Trust Fund and the issuance of the
Certificates pursuant to Sections 11.02 and 2.01, the Depositor hereby
delivers to and/or deposits with the Trustee the following documents,
instruments and property related to the Certificates:
(1) Opinion of Counsel. Opinion(s) of Counsel (in which such counsel
is entitled to rely upon certificates, opinions or representations as to
matters of fact by Authorized Officers of the Depositor or the Trustee and
governmental officials and, as to matters involving the laws of any state
other than the state in which such counsel is admitted to practice, upon an
Opinion of Counsel satisfactory to the Trustee) addressed to the Trustee to
the effect that:
(a) the Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power to own its properties, to conduct its
business as now conducted by it and to enter into and perform its
obligations under this Agreement;
(b) assuming due execution and delivery thereof by the Trustee, this
Agreement, as executed and delivered by the Depositor, is the valid,
legal and binding obligation of the Depositor, enforceable in accordance
with its terms, subject to bankruptcy, reorganization, insolvency and
other laws affecting the enforcement of creditors' rights generally and
to general principles of equity;
(c) the Certificates, assuming that they have been duly and validly
authorized, executed, delivered and issued by the Trustee, will, when
authenticated by the Certificate Registrar pursuant to this Agreement and
delivered to or upon the order of the Depositor, be valid, legal and
binding instruments, entitled to the benefits of this Agreement;
(d) immediately prior to the conveyance thereof to the Trustee, the
Depositor had the corporate power and authority to convey the Mortgage
Loans and other property included in the Trust Fund to the Trustee
pursuant to this Agreement;
(e) such action has been taken with respect to delivery of possession
of the Mortgage Loans and other property included in the Trust Fund on
the Delivery Date and with respect to the execution and delivery of all
requisite documents as is necessary to make effective the conveyance of
such property to the Trustee, with either the details of such action
recited therein, or the absence of any such action being necessary to
make such conveyance effective stated therein;
(f) the Depositor has effectively conveyed to the Trustee all of its
right, title and interest in and to the Mortgage Loans and other property
included in the Trust Fund on the Delivery Date;
(g) this Agreement is not required to be qualified under the Trust
Indenture Act of 1939; the Trust Fund created by this Agreement is not
required to be registered under the Investment Company Act of 1940, as
amended; the Registration Statement is effective under the Securities Act
of 1933, as amended (the "Securities Act"), and to the best of such
counsel's knowledge, no stop order suspending such effectiveness has been
issued;
(h) no consent, approval, authorization or order of any state or
Federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except such as may be required under the blue sky laws of any
jurisdiction in connection with the acquisition of Certificates and such
other approvals as have been obtained; and
(i) the issue and sale of the Certificates and the fulfillment of the
terms of this Agreement will not conflict with or result in a breach or
violation of, any term or provi sion of, or constitute a default under,
the certificate of incorporation or by-laws of the Depositor, or, to the
knowledge of such counsel, any indenture or other agreement or in
strument to which the Depositor is a party or by which it is bound, or
any statute or regulation applicable to the Depositor or, to the
knowledge of such counsel, any order of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Depositor.
(2) The Mortgage Loans. The Mortgage Loans included in the Trust
Fund, in the manner specified in Section 2.01.
(3) Mortgagor Bankruptcy Bond, Performance Bond, Special Hazard
Insurance Policy and Pool Insurance Policy. The Mortgagor Bankruptcy Bond, the
Performance Bond, the Special Hazard Insurance Policy and the Pool Insurance
Policy.
(4) Officers' Certificate of Insurers. An Officers' Certificate of
the Pool Insurer, to the effect that the Pool Insurance Policy is in full
force and effect, subject to its terms and conditions, with respect to the
Mortgage Loans specified in such Officers' Certificate, an Officers'
Certificate of the Special Hazard Insurer and of the issuer of the Mortgagor
Bankruptcy Bond, to the effect that the Insurance Policy issued by such
Insurer is in full force and effect, subject to its terms and conditions, with
respect to the Mortgage Loans and an Officers' Certificate of the issuer of
the Performance Bond to the effect that the Performance Bond is in full force
and effect with respect to the obligations of the Master Servicer under this
Agreement.
(5) Opinion of Counsel for Insurers. An Opinion of Counsel for each
Insurer dated the Delivery Date, to the effect that:
(a) the Insurer is duly organized, validly existing under the laws of
the state of its incorporation, is duly qualified to do business in all
jurisdictions where the nature of its operations as contemplated by the
Insurance Policy issued by such Insurer legally requires such
qualification, and has the power and authority (corporate and other) to
issue, and to take all action required of it under, such Insurance
Policy;
(b) the execution, delivery and performance by the Insurer of the
Insurance Policy issued by such Insurer has been duly authorized by all
necessary corporate action on the part of the Insurer, and under present
law does not and will not contravene any law or governmental regulation
or order presently binding on the Insurer or the charter or the by-laws
of the Insurer or contravene any provision of or constitute a default
under any indenture, contract or other instrument to which the Insurer is
a party or by which the Insurer is bound;
(c) the execution, delivery and performance by the Insurer of the
Insurance policy issued by such Insurer does not require the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any federal, state or other
governmental agency or authority that has not previously been effected;
and
(d) the Insurance Policy issued by such Insurer has been duly issued
and constitutes a legal, valid and binding agreement of the Insurer,
enforceable against the Insurer in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insol vency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity.
(6) Opinion of Counsel to the Master Servicer. An Opinion of Counsel
to the Master Servicer, dated not later than the date of the Delivery Date, to
the effect that:
(a) the Master Servicer is a duly organized and validly existing
corporation in good standing under the laws of the State of [ ]; the
Master Servicer is duly qualified to do business as a foreign corporation
in and is in good standing under the laws of each jurisdiction where the
nature of its operations as contemplated by this Agreement requires such
qualification;
(b) the Master Servicer has the corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby; the execution, delivery and performance of this Agreement have
been duly authorized by all requisite corporate action on the part of the
Master Servicer and (i) do not conflict with or result in, or will not
conflict with or result in, a breach of the certificate of incorporation
or by-laws of the Master Servicer, or, to such counsel's knowledge, any
of the provisions of any indenture, mortgage, contract or other
instrument to which the Master Servicer is a party or by which it is
bound or (ii) do not result in the creation or imposition of any lien,
charge or encum brance upon any of its property pursuant to the terms of
any indenture, mortgage, contract or other instruments; and
(c) this Agreement constitutes a legal, valid and binding agreement
of the Master Servicer, enforceable against the Master Servicer in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors' rights generally and to principles of equity.
SECTION 11.04. Denominations. A Single Certificate will be issued in a minimum
Denomination of $_________. The Certificates will be issued in fully
registered form only in minimum Denominations of $________ and integral
multiples thereof [and one Certificate may be issued in such denomination as
may be necessary to represent the remainder of the Principal Balance of the
Mortgage Loans on the Cut-off Date.]
SECTION 11.05. Principal Balance. The Principal Balance of the Mortgage
Loans on the Cut-Off Date, exclusive of principal payments due and payable
on such date, is $______________.
SECTION 11.06. Distributions on the Certificates. On each Distribution Date,
the Master Servicer shall make distributions to the Certificateholders in the
amounts and in the manner specified in Article XIII and in the forms of the
Certificates.
SECTION 11.07. Place and Notice for Final Distribution on Certificates.(a)
The final distribution made on each Certificate on anyDistribution
Date shall be distributable upon presentation and surrender thereof
at the office or agency of the Master Servicer maintained for such
purpose in the Borough of Manhattan, City and State of New York
pursuant to Section 5.02.
(b) Notice of final distribution on any Certificate on any
Distribution Date or Optional Termination Date shall be mailed no later
than the tenth day prior to the applicable Distribution Date or Optional
Termination Date.
SECTION 11.08. Pass-Through Rate. The Pass-Through Rate is ________%.
SECTION 11.09. Distribution Dates. The Distribution Dates for the Certificates
are the [ ]th day of each month, or, if such day is not a Business Day, the
next succeeding Business Day, commencing [ ], 200[ ].
SECTION 11.10. Record Dates. The Record Date for each Distribution Date will
be the close of business on the last day of the month preceding the month in
which the applicable Distribution Date occurs or, if such day is not a
Business Day, the next preceding Business Day.
SECTION 11.11. Mortgage Loans. The Mortgage Loans transferred and assigned to
the Trustee by the Depositor are the Mortgage Loans identified in the Mortgage
Loan Schedule attached hereto as Schedule I.
SECTION 11.12. Forms Generally. The Certificates and the Certificate
Registrar's certificate of authentication shall be in substantially the forms
set forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the judgment of the Master Servicer, the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters,numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any
of the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution thereof.
The definitive Certificates shall be printed, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
any of the Certificates may be listed, all as determined by the officers
executing such Certificates, as evidenced by their execution thereof.
SECTION 11.13. Termination at Option of the Depositor. The Depositor may, at
its option, repurchase from the Trust Fund all Mortgage Loans remaining
outstanding on any Distribution Date on or after the date on which the
Principal Balance of such Mortgage Loans is less than [10%] of the Principal
Balance of the Mortgage Loans on the Cut-off Date in the manner and at the
Repurchase Price provided in Article XIV.
SECTION 11.14. Substitution. The Depositor or the Servicer of a Mortgage Loan
may substitute for such Mortgage Loan a Substitute Mortgage Loan or Loans,
pursuant to Section 2.02, 2.04 or 2.05, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.04.
SECTION 11.15. Wire Transfer Eligibility. The minimum Denomination eligible
for wire transfer on each Distribution Date is $_______________.
SECTION 11.16. Required Rating. The Certificates shall have been rated [ ]
by [ ].
SECTION 11.17. Pool Insurance Policy. A specimen of the Pool Insurance Policy
with respect to the Mortgage Loans, naming the Trustee as loss payee, is
attached hereto as Exhibit B. The Pool Insurer is _______________, a
_______________ corporation.
SECTION 11.18. Special Hazard Insurance Policy. A specimen of the Special
Hazard Insurance Policy with respect to the Mortgage Loans, naming the Trustee
as loss payee, is attached as Exhibit C hereto. The Special Hazard Insurer is
_____________________, a ________________corporation.
SECTION 11.19. Mortgagor Bankruptcy Bond. A specimen of the Mortgagor
Bankruptcy Bond with respect to the Mortgage Loans is attached as Exhibit D
hereto. The Mortgagor Bankruptcy Bond has been issued by _____________, a
__________________ corporation.
SECTION 11.20. Performance Bond. A specimen of the Performance Bond is
attached as Exhibit E hereto. The Performance Bond has been issued by
_____________________, a ____________________ corporation.
SECTION 11.21. Warranty and Servicing Agreements. The Warranty and Servicing
Agreements with respect to the Mortgage Loans included in the Trust Fund are
listed on Schedule II hereto.
SECTION 11.22. Custodial Agreements. The Custodial Agreements with respect to
the Mortgage Loans included in the Trust Fund are listed on Schedule III
hereto.
SECTION 11.23. Retained Yield; Administrative Fee; Servicing Compensation. On
each Distribution Date, the Master Servicer shall remit to the Depositor, by
wire transfer of immediately available funds, from payments of interest and
other collections with respect to interest on the Mortgage Loans deposited in
the Certificate Account a Retained Yield equal to [ %] of the Principal
Balance of each Mortgage Loan and an Administrative Fee equal to [ %] of the
Principal Balance of each Mortgage Loan as provided in Section 3.19. The
Master Servicer shall be entitled to retain an amount in respect of each
interest payment on a Mortgage Loan equal to the excess of each interest
payment on such Mortgage Loan over the sum of (i) the Retained Yield, (ii) the
Administrative Fee and (iii) the Pass-Through Rate, as provided in Section
3.19, and such other amounts as provided in accordance with the provisions of
the Standard Terms.
SECTION 11.24. Cut-off Date. The Cut-off Date is [ ], 200[ ].
SECTION 11.25. Certificate Registrar. The Certificate Registrar is the
Trustee.
SECTION 11.26. Authenticating Agent. The Authenticating Agent is the Trustee.
SECTION 11.27. Paying Agent. The Paying Agent is the Master Servicer.
SECTION 11.28. Applicability of Certain Provisions of Standard Terms. The
provisions of Section 2.03(b) shall be applicable to the Certificates; the
provisions of Sections 3.24 and 3.26 shall not be applicable to the
Certificates.
ARTICLE XII
DEFINITIONS
Article One of the Standard Terms provides that the meaning
of certain defined terms used in this Agreement shall, when applied to a
particular Series of Certificates, be as defined herein. With respect to the
Certificates, the following definitions shall apply:
Administrative Fee: The percentage rate per annum of the
Principal Balance from time to time of each Mortgage Loan that is payable to
the Depositor out of each interest payment on a Mortgage Loan as compensation
for the performance of duties related to the administration of the Trust Fund,
which percentage is set forth in Article XI.
Agreement: The Standard Terms and Provisions of Pooling and
Servicing together with this Reference Agreement, and all amendments and
supplements hereto.
Authenticating Account: The authenticating agent specified
in Section 11.26.
Certificate: Any one of the Certificates executed by or on
behalf of the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto.
Certificate Registrar: The registrar appointed and
identified in Section 11.25.
Certificateholder: The registered holder of a Certificate.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be
replaced by a Substitute Mortgage Loan.
Delivery Date: [ ], 200[ ].
Denomination: For each Certificate, the amount designated as
such on the face thereof, the aggregate of the Denominations of the
Certificates being equal to the aggregate of the Principal Balances of the
Mortgage Loans on the Cut-off Date, exclusive of principal payments due and
payable on such date.
Distribution Date: The [ ]th day of each month, or if such
day is not a Business Day, the Business Day immediately following such day,
commencing [ ], 200[ ].
Due Date: The first day of the month, in which the related
Distribution Date occurs.
Insurance Policy: Any one of the Pool Insurance Policy,
Special Hazard Insurance Policy, Mortgagor Bankruptcy Bond and the Performance
Bond.
Insurer: Any one of the Pool Insurer, the Special Hazard
Insurer and the issuers of the Mortgagor Bankruptcy Bond and the Performance
Bond, as the context may require.
Mortgage Loans: The Mortgage Loans listed on the Mortgage
Loan Schedule attached hereto.
Mortgage Loan Schedule: The list of Mortgage Loans
transferred on the Delivery Date to the Trustee as part of the Trust Fund for
the Certificates, attached hereto as Schedule I.
Mortgage Rate: The interest rate on a Mortgage Loan.
Optional Termination: The repurchase of the Mortgage Loans
by the Depositor pursuant to Section 14.01.
Optional Termination Date: The Distribution Date fixed by
the Depositor for the repurchase of the Mortgage Loans pursuant to Article
XIV.
Pass-Through Rate: The annual rate of interest set forth on
the face of the Certificates. Any monthly remittance of interest at such rate
shall be based upon annual interest at such rate on the Principal Balance of
the related Mortgage Loan divided by twelve.
Performance Bond: The performance letter issued by
____________, a specimen of which is attached hereto as Exhibit E.
Pool Insurance Policy: The policy of mortgage pool
insurance, naming the Trustee as loss payee, a specimen of which is attached
hereto as Exhibit B or any replacement policy therefor obtained pursuant to
Section 3.13.
Repurchase Price: The price, calculated as set forth in
Section 14.01, to be paid by the Depositor in connection with the repurchase
of the Mortgage Loans pursuant to an Optional Termination.
Retained Yield: The percentage rate per annum of the
Principal Balance from time to time of each Mortgage Loan that is retained by
the Depositor and payable out of each interest payment on a Mortgage Loan,
which percentage is set forth in Article XI and in the Mortgage Loan Schedule.
Single Certificate: A Certificate issued in a minimum
Denomination of $_______________ as set forth in Section 11.04.
Special Hazard Insurance Policy: The policy of special
hazard insurance, naming the Trustee as loss payee, a specimen of which is
attached as Exhibit C to this Agreement or any replacement policy obtained
pursuant to Section 3.14.
Special Hazard Insurer: The insurer named in Article XI or
the named insurer in any replacement policy obtained pursuant to Section 3.14.
Substitute Mortgage Loan: A Mortgage Loan substituted by the
Depositor or the related Servicer for a Deleted Mortgage Loan which must, on
the date of such substitution, (i) have an outstanding Principal Balance,
after deduction of the principal portion of the monthly payment due in the
month of substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate Principal Balance),
not in excess of the Principal Balance of the Deleted Mortgage Loan [and not
less than [ %] of Principal Balance of the Deleted Mortgage Loan] (the amount
of any shortage will be deposited by the Depositor or the Servicer in the
Certificate Account and distributed by the Master Servicer to
Certificateholders in the month of substitution); (ii) have a Mortgage Rate
not less than the Mortgage Rate of the Deleted Mortgage Loan but not greater
than [ %] in excess of the Mortgage Rate of the Deleted Mortgage Loan; (iii)
have a remaining term to maturity not greater than [ ] years and not greater
than [ ] years less than the remaining term of the Deleted Mortgage Loan; and
(iv) comply with each representation and warranty set forth in Section 2.04 or
in the related Warranty and Servicing Agreement.
Trust Fund: The corpus of the trust created by this
Agreement consisting of (i) the Mortgage Loans described in the Mortgage Loan
Schedule, exclusive of the Retained Yield, (ii) all distributions thereon
payable after the Cut-off Date, other than as provided herein, (iii) property
that secured a Mortgage Loan and has been acquired by foreclosure or deed in
lieu of foreclosure, (iv) amounts remitted from time to time to the Master
Servicer and held from time to time by the Master Servicer in the Certificate
Account, net of the amounts payable to the Master Servicer, as provided in
this Agreement, (v) the rights of the Certificateholders in the Primary
Insurance Policies, the Pool Insurance Policy, the Special Hazard Insurance
Policy and any other insurance policies with respect to the Mortgage Loans,
(vi) the rights of the Certificateholders in the Mortgagor Bankruptcy Bond and
the proceeds thereof, (vii) the rights of the Certificateholders in the
Performance Bond and the proceeds thereof and (viii) the Depositor's rights
under the Warranty and Servicing Agreements with respect to the Mortgage Loans
included in the Trust Fund.
Voting Rights: The portion of the aggregate voting rights of
all the Certificates, evidenced by a Certificate, which is obtained by
dividing the Denomination of such Certificate by the aggregate Denominations
of all of the Certificates.
ARTICLE XIII
PAYMENTS AND STATEMENTS TO
CERTIFICATEHOLDERS
SECTION 13.01. Certificate Account. The Master Servicer shall, prior to the
Delivery Date, establish and maintain, in the name of the Trustee on behalf of
the Certificateholders, the Certificate Account, into which the Master
Servicer shall deposit not later than each Distribution Date, the amounts
specified in Section 3.08. All distributions to be made from time to time to
the Certificateholders out of funds in the Certificate Account shall be made
by the Master Servicer.
SECTION 13.02. Distributions. Subject to Sections 9.01 and 14.02 respecting
the final distribution, on each Distribution Date, the Master Servicer shall
distribute from the Certificate Account to each Certificateholder of record on
the related Record Date, the amount to be distributed to such
Certificateholder pursuant to the respective Certificate or Certificates held
by such Certificateholder. Such distribution shall be made by check mailed on
the Distribution Date to the address of each Certificateholder appearing in
the Certificate Register, except that, with respect to any Holder eligible for
wire transfer, as provided in Section 11.15, distributions shall be made on
the Distribution Date by wire transfer in immediately available funds,
provided that such Certificateholder, not less than two Business Days prior to
the related Distribution Date, shall have furnished the Master Servicer with
appropriate wiring instructions. Distributions may also be made by such other
means of payment as to which each Certificateholder and the Master Servicer
shall agree.
SECTION 13.03. Monthly Statements to Certificateholders. Prior to or
concurrently with each distribution from the Certificate Account to the
Certificateholders made on a Distribution Date, the Master Servicer shall
cause to be forwarded by mail to each Certificateholder and to the Trustee a
statement setting forth:
(i) the amount of such distribution representing principal on the
Mortgage Loans, separately identifying the aggregate amount of any
Principal Prepayments including therein, and the portion of such
distribution, if any, representing an Advance of principal;
(ii) the amount of such distribution representing interest on the
Mortgage Loans and the portion of such distribution, if any resenting an
Advance of interest;
(iii) the amount of servicing compensation received by the Servicers
and the Master Servicer with respect to the monthly period preceding the
related Distribution Date and such other customary information as the
Master Servicer deems necessary or desirable to enable Certificateholders
to prepare their tax returns.
(iv) the amount of Retained Yield and the Administrative Fee paid to
the Depositor;
(v) the aggregate Principal Balance of the Mortgage Loans on the Due
Date of the month of such distribution, after giving effect to payments
on the Mortgage Loans due on the Due Date and distributed to
Certificateholders on the Distribution Date;
(vi) the book value of any collateral acquired on behalf of
Certificateholders through foreclosure or grant of deed in lieu of
foreclosure or otherwise of any Mortgage Loan;
(vii) the number and aggregate Principal Balance of Mortgage Loans
(1) more than 30 days delinquent; (2) more than 60 days delinquent and
(3) in foreclosure as of the close of business on a date not earlier than
the Due Date; and
(viii) the amount of coverage remaining under the Pool Insurance
Policy, the Special Hazard Insurance Policy and the Mortgagor Bankruptcy
Bond after giving effect to any amount with respect thereto distributed
to Certificateholders on the Distribution Date.
In the case of information furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount per
Single Certificate.
Upon reasonable advance notice in writing, the Master
Servicer shall provide to each Certificateholder that is a savings and loan
association, bank or insurance company certain reports and access to
information and documentation regarding the Mortgage Loans sufficient to
permit such Certificateholders to comply with applicable regulations of the
Federal Home Loan Bank Board or other regulatory authorities with respect to
their investment in the Certificates; provided, however, that the Master
Servicer shall be entitled to be reimbursed by such Certificateholders for the
actual expenses incurred by the Master Servicer in providing such reports and
access.
Within a reasonable period of time after the end of each
calendar year, the Master Servicer shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (i) through (iv) of this
Section 13.03 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the
Master Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Master Servicer
pursuant to any requirements of the Code as from time to time in effect.
ARTICLE XIV
OPTIONAL TERMINATION
SECTION 14.01. Repurchase at the Option of the Depositor. To the extent
specified in Article XI, the Mortgage Loans included in the Trust Fund shall
be subject to repurchase at the option of the Depositor as permitted herein on
any Optional Termination Date at the Repurchase Price specified herein.
Unless otherwise specified in Article XI, the Repurchase
Price for any such Optional Termination shall be equal to the aggregate
Principal Balance of the Mortgage Loans as of the date of repurchase, together
with accrued and unpaid interest thereon at the Pass-Through Rate through the
last day of the month of such repurchase, plus the appraised value of any
property acquired in respect thereof. The right of the Depositor to repurchase
the Mortgage Loans is conditioned on the Depositor's having previously given
notice of termination as required by Section 14.02.
SECTION 14.02. Procedure Upon Optional Termination.(a) In case of any
Optional Termination pursuant to Section 14.01, the Depositor shall,
at least 20 days prior to the date notice is to be mailed to the
Certificateholders (unless a shorter period shall be satisfactory to
the Master Servicer and the Trustee), notify the Master Servicer and
the Trustee of such Optional Termination Date, and of the Repurchase
Price of the Mortgage Loans to be repurchased.
(b) Any repurchase by the Depositor of the Mortgage Loans shall be
made on the Optional Termination Date by deposit of the Repurchase Price
into the Certificate Account on or before the Distribution Date on which
such repurchase is effected. Upon receipt by the Trustee of an Officers'
Certificate of the Master Servicer certifying as to the deposit of the
Repurchase Price into the Certificate Account, the Trustee and each
co-trustee and separate trustee, if any, then acting as such under this
Agreement, shall, upon request of the Depositor and at the expense of the
Depositor, execute and deliver all such instruments of transfer or
assignment, in each case without recourse, as shall be reasonably
requested by the Depositor to vest title in the Mortgage Loans so
repurchased to the Depositor and shall transfer or deliver or shall cause
the applicable Custodian to transfer or deliver to the Depositor or its
designee the repurchased Mortgage Loans. Any distributions on the
Mortgage Loans received by the Trustee or the Master Servicer subsequent
to the Optional Termination Date shall be promptly remitted by it to the
Depositor.
(c) Notice of any Optional Termination pursuant to the provisions of
this Article XIV, specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Master
Servicer by first class mail to Holders of the Certificates mailed no
earlier than the 15th day and not later than the 10th day preceding the
Optional Termination Date. Such notice shall specify (A) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of the Certificates at the office or agency of
the Master Servicer therein designated, (B) the amount of such final
distribution and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, such distribution being made only
upon presentation and surrender of the Certificates at the office or
agency of the Master Servicer maintained for such purposes (the address
of which shall be set forth in such notice). The Master Servicer shall
give such notice to the Certificate Registrar at the time such notice is
given to Holders of the Certificates. Upon deposit in the Certificate
Account on the applicable Distribution Date of an amount equal to the
Repurchase Price pursuant to Section 14.01 and presentation and surrender
of the Certificates, the Master Servicer shall cause to be distributed to
Holders of Certificates an amount equal to the Repurchase Price. Payments
received by the Master Servicer with respect to the Mortgage Loans in
excess of the Repurchase Price, after giving effect to any amounts to be
retained or distributed by it pursuant to Section 3.12, shall be promptly
remitted by the Master Servicer to the Depositor.
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. Standard Terms. The Standard Terms attached hereto is hereby
incorporated herein by reference, to the extent specified herein, and hereby
forms a part of this instrument with the same force and effect as if set forth
in full herein. In the event that any term or provision contained herein shall
conflict or be inconsistent with any term or provision contained in the
Standard Terms, the terms and provisions of this Reference Agreement shall
govern.
SECTION 15.02. Ratification of Standard Terms. As incorporated by reference
into this Reference Agreement, the Standard Terms is in all respects ratified
and confirmed, and the Standard Terms and this Reference Agreement shall be
read, taken and construed as one and the same instrument.
SECTION 15.03. Amendment. In addition to the amendments permitted by Section
10.01, this Agreement may be amended from time to time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing, in the aggregate, not less than 66% of the Voting
Rights of all the Certificates for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of the Certificates;
provided, however, that no such amendment may, without the consent of the
Holders of Certificates evidencing 100% of the Voting Rights of the
Certificates: (i) reduce in any manner the amount of, delay the timing of or
change the manner in which payments received on Mortgage Loans are required to
be distributed with respect to any Certificate, or (ii) reduce the aforesaid
percentages of Certificates, the Holders of which are required to consent to
any such amendments.
Promptly after the execution of any amendment to this
Agreement requiring the consent of Certificateholders, the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder.
It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
SECTION 15.04. Counterparts. For the purpose of facilitating the recordation
of this Reference Agreement as herein provided and for other purposes, this
Reference Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.
SECTION 15.05. Governing Law.
This Reference Agreement shall be construed in accordance
with and governed by the substantive laws of the [State of New York] [State of
] applicable to agreements made and to be performed in the [State of New York]
[State of ] and the obligations, rights and remedies of the parties hereto and
of the Certificateholders shall be determined in accordance with such laws.
SECTION 15.06. Recordation of Agreement.
This Reference Agreement is subject to recordation in all
appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject
to the Mortgaged Properties 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 [Depositor] or upon direction by the Trustee,
but only upon direction by the Trustee accompa xxxx by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of Certificateholders.
SECTION 15.07. Severability of Provisions.
If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason, whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of
this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Reference Agreement or of the Certificates or the
rights of the Holders thereof.
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 and their respective seals, duly attested,
to be hereunto affixed, all as of the day and year first above written.
XXXXXXX SACHS ASSET BACKED
SECURITIES CORP., as Depositor
By:____________________________
Name:
Title:
[SEAL]
ATTEST:
[TRUSTEE NAME], as Trustee
By:____________________________
Name:
Title:
[SEAL]
ATTEST:
[MASTER SERVICER NAME], as Master
Servicer
By:___________________________
Name:
Title:
[SEAL]
ATTEST:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ________ day of _____________, 20__, before me
personally appeared ______________________, to me known, who being by me duly
sworn, did depose and say that he resides at ___________________, that he is
the ______________________ of [ ], one of the corporations described in and
which executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he signed his name thereto by like order.
__________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ________ day of ____________, 20__, before me
personally appeared ______________________, to me known, who being by me duly
sworn, did depose and say that he resides at ___________________, that he is
the ______________________ of [Trustee Name], the banking corporation
described in and which executed the above instrument; that he knows the seal
of said banking corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said banking corporation; and that he signed his name thereto by like order.
__________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ________ day of ___________, 20__, before me
personally appeared ______________________, to me known, who being by me duly
sworn, did depose and say that he resides at ___________________, that he is
the ______________________ of [Master Servicer Name], one of the corporations
described in and which executed the above instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation; and that he signed his name thereto by like order.
__________________________
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
[Form of Face of Certificate]
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE
MONTHLY AS SET FORTH HEREIN; ACCORDINGLY, THE UNPAID PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AT ANY TIME MAY BE LESS THAN THE PRINCIPAL AMOUNT SET FORTH ON
THIS CERTIFICATE. THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR
OBLIGATION OF [ ] OR OF ANY OF ITS AFFILIATES EXCEPT AS SET FORTH HEREIN AND
IN THE AGREEMENT.
CONDUIT MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ___
______% PASS-THROUGH RATE
evidencing an undivided interest in a trust fund consisting of certain
conventional mortgage loans transferred by
[ ]
______________________________________
[The following information is provided solely for purposes of applying federal
income tax original issue discount ("OID") rules to this instrument:
OID: _____%
ISSUE DATE: ___________, 20__
YIELD (ASSUMING NO PREPAYMENTS): ____%
SHORT ACCRUAL PERIOD YIELD COMPUTATION: EXACT
OID ALLOCABLE TO SHORT ACCRUAL PERIOD: ____%
CUSIP: _________________
ISSUE PRICE: _________________%]
Certificate No. _______________ $________________ DENOMINATION
First Distribution Final Scheduled
Date: ______, 20__ Distribution Date: _________, 20__
THIS CERTIFIES THAT _____________ is the registered owner of
the pro rata undivided interest obtained by dividing the Denomination set
forth above by the aggregate Denominations of all the Certificates in the
Trust Fund referred to below consisting of certain mortgage loans (the
"Mortgage Loans") sold to the Trust by [ ] (the "Depositor"), exclusive of a
portion of the interest payable on each Mortgage Loan the ownership of which
has been retained by the Depositor (the "Retained Yield"), and certain related
property transferred to the Trust by the Depositor. The Trust Fund was created
pursuant to the Standard Terms and Provisions of Pooling and Servicing, dated
as of [ ], 200[ ] (the "Standard Terms") and the Reference Agreement, dated as
of [ ], 200[ ] (the "Reference Agreement" and, together with the Standard
Terms, the "Agreement") each among the Depositor, [Master Servicer Name], as
master servicer (the "Master Servicer") and [Trustee Name], as trustee (the
"Trustee," which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth
hereinbelow. The aggregate Principal Balance of the Mortgage Loans included in
the Trust Fund as of [ ], 200[ ] (the "Cut-off Date"), exclusive of payments
due on or before such date, was $____________. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate and the Agreement set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed under its corporate seal.
Date:
[TRUSTEE NAME], as Trustee
By:_________________________
Name:
Title:
[SEAL]
ATTEST
_____________________________
Authorized officer of
[Trustee Name]
[Form of Certificate of Authentication]
THIS IS ONE OF THE CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED AGREEMENT
[TRUSTEE NAME]
REGISTRAR
By:_____________________________
AUTHORIZED OFFICER
[FORM OF REVERSE OF CERTIFICATE]
[ ]
CONDUIT MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ______
____% PASS-THROUGH RATE
This Certificate is one of a duly authorized issue of
Certificates of [ ] designated as its Conduit Mortgage Pass- Through
Certificates, Series ___, ____% Pass-Through Rate (the "Certificates') issued
under and subject to the terms, provisions and conditions of the Agreement.
Reference is hereby made to the Agreement for a statement of the re spective
rights thereunder of the Depositor, the Master Servicer, the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents the undivided
interest obtained by dividing the Denomination set forth on the face hereof by
the aggregate Denomination of all Certificates in (i) the Mortgage Loans and
the proceeds hereof payable after the Cut-off Date, net of any amounts payable
to the Depositor, the Master Servicer and the Servicers in accordance with the
provisions of the Agreement, (ii) the Certificate Account and all amounts
deposited therein pursuant to the applicable provisions of the Agreement, net
of the Retained Yield, the Administrative Fee and amounts payable to the
Servicers, the Master Servicer and the Depositor, as provided in the
Agreement, (iii) property acquired by foreclosure, deed in lieu of foreclosure
or otherwise with respect to the Mortgage Loans and (iv) the interest of the
Certificateholders in the Pool Insurance Policy, the Special Hazard Insurance
Policy, the Mortgagor Bankruptcy Bond, the Performance Bond, and all proceeds
thereof as provided in the Agreement (such Mortgage Loans, funds, property and
interests are herein collectively called the "Trust Fund").
The Master Servicer shall distribute on the [ ]th day of
each month, or, if such [ ]th day is not a Business Day, the Business Day
immediately following such [ ]th day (the "Distribution Date"), commencing [
], 200[ ], to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), an amount equal to the
product of the undivided interest evidenced by this Certificate and the
aggregate of (i) all previously undistributed payments or other receipts on
account of principal (including Principal Prepayments, if any) and interest on
the Mortgage Loans, exclusive of the Retained Yield, subject at any time to
the Agreement, including any Liquidation Proceeds, received by the Master
Servicer after the Cut-off Date as set forth on the face hereof, or received
prior to the Cut-off Date but due thereafter, and prior to the Determination
Date except: (a) payments that were due and payable on or before the Cut-off
Date; (b) Principal Prepayments and Liquidation Proceeds and all proceeds of
any Mortgage Loans or property acquired in respect thereof repurchased
pursuant to Sections 2.02, 2.04, 2.05 and 9.01 of the Agreement received
during the month of distribution and all related payments of interest
representing interest for the month of distribution or any portion thereof;
(c) payments, other than Principal Prepayments, that represent early receipt
of scheduled payments of principal and interest due on or after the first day
of the month of distribution; (d) late payments of principal or interest
respecting which there are any unreimbursed Monthly Advances; (e) amounts
representing reimbursement for certain losses and expenses, all as described
in the Agreement; (f) that portion of each payment of interest on each
Mortgage Loan in excess of interest at the Pass-Through Rate set forth above
on the unpaid principal balance of such Mortgage Loan outstanding for the
period for which such payment was received; and (g) to the extent specified in
the Agreement, that portion of the Liquidation Proceeds of Mortgage Loans in
excess of the unpaid principal balances thereof and unpaid interest thereon;
and (ii) the Monthly Advance, if any, made by the Master Servicer for the
related period. For the purposes hereof, amounts received by the Master
Servicer in connection with the liquidation of Mortgage Loans through
foreclosure, sale, deed in lieu of foreclosure or otherwise shall be deemed to
be payments on account of principal of Mortgage Loans.
Distributions on this Certificate will be made by the Master
Servicer by check mailed to the address of the Holder hereof entitled thereto
at the address appearing in the Certificate Register or, if eligible for wire
transfer as set forth in Section 11.15 of the Agreement, by wire transfer in
immediately available funds or by such other means of payment as the Holder
hereof and the Master Servicer shall agree upon. Except as otherwise provided
in the Agreement, the final distribution on this Certificate will be made, in
the applicable manner described above, after due notice by the Master Servicer
of the pendency of such final distribution and only upon presentation and
surrender of this Certificate at the office or agency designated in such
notice.
As provided in the Agreement, deductions and withdrawals
from the Certificate Account may be made by the Master Servicer from time to
time for purposes other than distributions to the Certificateholders, such
purposes including payment of the Retained Yield and Administrative Fee to the
Depositor and reimbursement to the Master Servicer of Monthly Advances and of
certain expenses incurred by it.
The Agreement permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Master Servicer, the Depositor and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates evidencing Voting Rights aggregating not less than 66% of the
Voting Rights of all the Certificates; provided, however, that no such
amendment may, without the consent of the Holders of all Certificates then
outstanding, (i) reduce in any manner the amount of, delay the timing of or
change the manner in which payments received on Mortgage Loans are required to
be distributed in respect of any Certificate, or (ii) reduce the aforesaid
percentages of Certificates, the Holders of which are required to consent to
any such amendments. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the Master Servicer,
the Depositor and the Trustee to amend certain terms and conditions set forth
in the Agreement without the consent of Holders of the Certificates issued
thereunder.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
on the Certificate Register maintained by the Trustee upon surrender of this
Certificate for registration of transfer at the office or agency maintained
for that purpose by the Trustee in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in a 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
authorized denominations and for the same aggregate Denomination and undivided
interest will be issued to the designated transferee or transferees.
The Certificates are issuable only in registered form in
minimum Denominations of $____________________ and integral multiples of
$____________________ in excess thereof, and one Certificate may be issued in
such Denomination as may be necessary to represent the remainder of the
aggregate Principal Balance of the Mortgage Loans an the Cut-off Date. As
provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for one or more new Certificates of
authorized Denominations evidencing a like aggregate undivided interest, as
requested by the Holder surrendering the same.
No service charge will be made for such registrations,
transfers or exchanges, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Master Servicer, the Certificate Registrar and the Trustee and
any agent of the Master Servicer, the Certificate Registrar or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Master Servicer, the Certificate
Registrar nor the Trustee nor any such agent thereof shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligation of the Master Servicer to provide
for payments to Certificateholders pursuant to the Agreement) shall terminate
upon the earlier of (a) the repurchase by the Depositor from the Trust Fund of
all Mortgage Loans remaining in the Trust Fund and all property Acquired with
respect thereto and (b) the later of (i) the maturity or other liquidation of
the last Mortgage Loan subject thereto and the disposition of all property
acquired upon foreclosure or deed-in-lieu of foreclosure of any Mortgage Loans
and (ii) the distribution to Certificateholders of all amounts in the
Certificate Account required to be distributed to them pursuant to the
Agreement. Any such purchase by the Depositor will be made at a price equal to
the aggregate outstanding Principal Balance of the Mortgage Loans as of the
date of repurchase, together with accrued and unpaid interest thereon at the
Pass Through Rate to the last day of the month of such repurchase, plus the
appraised value of any property acquired in respect thereof. The Agreement
permits, but does not require, the Depositor to make such purchase on any
Distribution Date, subject to the condition that the aggregate Principal
Balance of the Mortgage Loans at the time of purchase is less than to [10%] of
the aggregate Princi pal Balance of the Mortgage Loans on the Cut-off Date.
The exercise of such right will effect early retirement of the Certificates.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
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, or assignee)
the undivided interest in the Trust Fund evidenced by the within Certificate
and hereby authorize(s) the transfer of registration of such interest to the
assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate
of a like Denomination and undivided interest in the Trust Fund to the
above-named assignee and to deliver such Certificate to the following address:
_______________________________________________________________________________
_______________________________________________________________________________
Dated:___________________
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee: (signature must be signed as
registered)
__________________________ _____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the
information of the Master Servicer:
Distribution shall be made by wire transfer in immediately
available funds
to____________________________________________________________________________
__________________________________________________________________ the account
of ___________________________________________________, account number
__________________ or, if mailed by check, to _______________________. This
information is provided by the assignee named above, or its agent.
Schedule I
MORTGAGE LOAN SCHEDULE
[Each Mortgage Loan shall be identified by loan number,
address of the mortgaged property and name of the Mortgagor. The following
details shall be set forth as to each Mortgage Loan: (i) the Principal Balance
at the time of its origination, (ii) the adjusted Principal Balance as of the
Cut-off Date, (iii) the Mortgage Rate, (iv) the scheduled monthly payment of
principal and interest, (v) the first payment date, (vi) the original term,
(vii) a code indicating whether the residential dwelling at the time of
origination was represented to be a primary residence, a second or vacation
home, or an investment property, (viii) a code indicating whether the
residential dwelling is a single family dwelling, a two-to-four family
dwelling or a condominium unit in a high-rise or low-rise development, (ix) a
code indicating the number of units in the residential dwelling, (x) the
Loan-to-Value Ratio at origination and (xi) the Retained Yield.]
EXHIBIT B
FORM OF CUSTODIAN INTERIM CERTIFICATION
[date]
[Trustee Name], as Trustee
______________________________
______________________________
Attention:____________________
Re: Custodial Agreement dated as of [ ], 200[ ] by
and among [Trustee Name], as Trustee, [ ],
as Depositor, [Master Servicer Name], as Master Servicer and
[Custodian Name], as Custodian, Xxxxxxx Xxxxx Asset Backed
Securities Corp. Conduit Mortgage Pass Through Certificates,
Series [ ]
Ladies and Gentlemen:
In accordance with Section 2.3(b) of the above-captioned
Custodial Agreement, the undersigned, as Custodian, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule it has reviewed the
Mortgage File and the Mortgage Loan Schedule and has determined that: (i) all
documents required to be included in the Mortgage File are in its possession;
(ii) such documents have been reviewed by it and appear regular on their face
and relate to such Mortgage Loan; and (iii) based or examination, and only as
to such documents, the information set forth in the Mortgage Loan Schedule
with respect to such Mortgage Loan is correct.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial
Agreement.
__________________________
as Custodian
By:________________________
Title:_____________________
EXHIBIT C
FORM OF CUSTODIAN INTERIM CERTIFICATION
[date]
[Trustee Name], as Trustee
_____________________________
_____________________________
Attention:____________________
Re: Custodial Agreement dated as of [ ], 200[ ]
by and among [Trustee Name], as Trustee, [ ],
as Depositor, [Master Servicer Name], as Master Servicer
and [Custodian Name], as Custodian, Xxxxxxx Sachs Asset
Backed Securities Corp. Conduit Mortgage Pass Through
Certificates, Series [ ]
Ladies and Gentlemen:
In accordance with Section 2.3(b) of the above-captioned
Custodial Agreement, the undersigned, as Custodian, hereby certifies that as
to each Mortgage Loan listed in the Replacement Mortgage Loan Schedule it has
reviewed the Mortgage File and the Replacement Mortgage Loan Schedule and has
determined that: (i) all documents required to be included in the Mortgage
File are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Replacement Mortgage Loan; and
(iii) based on examination, and only as to such documents, the information set
forth in the Replacement Mortgage Loan Schedule with respect to such Mortgage
Loan is correct.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial
Agreement.
__________________________
as Custodian
By:________________________
Title:_____________________
EXHIBIT D
FORM OF CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT (as amended and supplemented from time
to time, the "Agreement"), dated as of [ ], 200[ ], by and among [TRUSTEE
NAME], as trustee under the Pooling and Servicing Agreement referred to
hereinbelow (the "Trustee"), [Xxxxxxx Xxxxx Asset Backed Securities Corp.], a
Delaware corporation, as depositor under the Pooling and Servicing Agreement
(the "Depositor"), [MASTER SERVICER NAME], a [ ] corporation, as master
servicer under the Pooling and Servicing Agreement (the "Master Servicer"),
and [CUSTODIAN NAME], as custodian hereunder (the "Custodian").
W I T N E S S E T H T H A T:
WHEREAS, the Depositor, the Master Servicer and the Trustee
have entered into a Reference Agreement dated as of [ ], 200[ ] (the
"Reference Agreement"), which incorporates by reference, to the extent
provided therein, the Standard Terms and Provisions of Pooling and Servicing,
dated as of [ ], 200[ ] (the "Standard Terms," and, together with the
Reference Agreement, the "Pooling and Servicing Agreement") among the
Depositor, the Master Servicer and the Trustee, pursuant to which the
Depositor shall transfer, assign, set-over and otherwise convey to the
Trustee, without recourse, the Depositor's right, title and interest (to the
extent provided in the Pooling and Servicing Agreement) in and to the Mortgage
Loans identified in Schedule I attached hereto (the "Mortgage Loan Schedule");
and
WHEREAS, the Custodian has agreed to act as agent for the
Trustee for the purposes of receiving and holding certain documents and other
instruments delivered by the Depositor under the Pooling and Servicing
Agreement, all upon the terms and conditions and subject to the limitations
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the Trustee, the
Depositor, the Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
Definitions
Capitalized words and phrases used but not otherwise defined
in this Agreement shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement.
ARTICLE II
Custody of Mortgage Documents
Section 2.1 Custodian to Act as Agent; Acceptance of
Mortgage Files.
The Custodian, as the duly appointed agent and bailee of the
Trustee for these purposes, acknowledges receipt as of the Delivery Date of
the following documents pertaining to each of the Mortgage Loans identified on
Schedule I hereto:
(a) the original Mortgage Note, endorsed by the Depositor
without recourse to the Trustee in the following form: "Pay to the order of
[Trustee Name], as trustee under the Pooling and Servicing Agreement dated as
of [ ], 200[ ], [ ], Conduit Mortgage Pass-Through Certificates, Series __,
without recourse," with all intervening endorsements showing a complete chain
of title from the originator to the Depositor;
(b) the original recorded Mortgage or, if the original
Mortgage has not been returned from the applicable public recording office, a
copy of the Mortgage certified by the Depositor to be a true and complete copy
of the original Mortgage submitted for recording;
(c) an executed assignment (which may be included in a
blanket assignment) of the Mortgage from the Depositor to "[Trustee Name], as
trustee under the Pooling and Servicing Agreement dated as of ___________,
20__, [ ] Conduit Mortgage Pass-Through Certificates, Series __________";
(d) the original recorded assignment or assignments of the
Mortgage showing a complete chain of title from the originator to the
Depositor or, if any such Assignment has not been returned from the applicable
public recording office, a copy of such assignment certified by the Depositor
to be a true and complete copy of the original assignment submitted for
recording;
(e) the original policy of title insurance or, if such
policy has not been delivered to the Depositor prior to the Delivery Date, an
original binder of title insurance;
(f) the original of each assumption, modification, written
assurance or substitution agreement, if any; and
(g) the original Primary Insurance Policy, if any.
The Depositor shall, promptly upon receipt thereof, deliver
to the Custodian: (i) the original recorded Mortgage in those instances where
a copy thereof certified by the Depositor was delivered to the Custodian; (ii)
the original recorded assignment of the Mortgage from the Depositor to the
Trustee; and (iii) the original recorded assignment or assignments of the
Mortgage showing a complete chain of title from the originator to the
Depositor in those instances where copies thereof certified by the Depositor
were delivered to the Custodian. Notwithstanding anything to the contrary
contained in this Section 2.1, in those instances where the public recording
office retains the original Mortgage or assignment after it has been recorded,
the Depositor shall be deemed to have satisfied its obligations hereunder upon
delivery to the Custodian of a copy of such Mortgage or assignment certified
by the public recording office to be a true and complete copy of the recorded
original thereof. From time to time the Master Servicer may forward to the
Custodian additional original documents evidencing an assumption or
modification of a Mortgage Loan. All Mortgage Loan documents held by the
Custodian as to each Mortgage Loan shall hereinafter be referred to as the
"Mortgage File."
Section 2.2. Recordation of Assignments. The Custodian shall
promptly cause to be recorded, at the expense of the Depositor in the
appropriate public office for real property records, each assignment referred
to in Section 2.1(c) above. In the event that any such assignment is lost or
returned unrecorded because of a defect therein, the Depositor shall prepare a
substitute assignment or cure such defect, as the case may be, and deliver
such substitute assignment to the Custodian, which shall thereafter cause each
such assignment to be duly recorded.
Section 2.3. Review of Mortgage Files.
(a) On or prior to the Delivery Date, the Custodian shall
deliver to the Trustee an Initial Certification in the form annexed hereto as
Exhibit A evidencing receipt of a Mortgage File for each Mortgage Loan listed
on the Mortgage Loan Schedule.
(b) Within 60 days of the Closing Date the Custodian shall
ascertain that all documents required to be delivered to it are in its
possession, and shall deliver to the Trustee an Interim Certification in the
form annexed hereto as Exhibit B to the effect that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in such certification as not
covered by such certification), (i) all documents required to be delivered to
it pursuant to this Agreement are in its possession, (ii) such documents have
been reviewed by it and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on its examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule respecting
each such Mortgage Loan is correct. The Custodian shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable, or appropriate for the represented, purpose or that they have
actually been recorded or that they are other than that which they purport to
be on their face.
(c) Any Replacement Mortgage Loan delivered to the Custodian
shall be delivered to the Custodian accompanied by the documents relating to
such Replacement Mortgage Loan, as specified in Section 2.1 hereof, and in
accordance with the provisions of Section 2.02, 2.04 or 2.05, as applicable.
On the date of delivery of such Replacement Mortgage Loan (the "Subsequent
Delivery Date"), the Custodian, upon review of the Mortgage File shall deliver
to the Trustee an Interim Certification in the form annexed hereto as Exhibit
C to the effect as to each Replacement Mortgage Loan listed in the Mortgage
Loan Schedule with respect thereto (the "Replacement Mortgage Loan Schedule")
(i) all documents required to be delivered to it pursuant to this Agreement
are in its possession, (ii) such documents have been reviewed by it and appear
regular on their face and relate to such Mortgage Loan, and (iii) based on its
examination and only as to the foregoing documents, the information set forth
in the Replacement Mortgage Loan Schedule respecting each such Replacement
Mortgage Loan is correct. The Custodian shall be under no duty or obligation
to inspect, review or examine said documents, instruments, certificates or
other papers to determine that the same are genuine, enforceable or
appropriate for the represented purpose, that they have actually been recorded
or that they are other than that which they purport to be on their face.
(d) Prior to the first anniversary date of this Agreement
the Custodian shall deliver to the Trustee a Final Certification in the form
annexed hereto as Exhibit D evidencing the completeness of the Mortgage Files.
Section 2.4. Notification of Defects. Upon discovery by the
Custodian of a defect with respect to a Mortgage File, the Custodian shall
give prompt written notice specifying such defect to the Trustee.
Section 2.5. Release of Mortgage Files. Upon (i) the payment
in full of any Mortgaged Loan, or (ii) the repurchase of any Mortgage Loan
pursuant to Section 2.02, 2.03(b), 2.04, 2.05, 2.06, 3.15 or 9.01 of the
Pooling and Servicing Agreement, or (iii) substitution of a re placement
Mortgage Loan for a Deleted Mortgage Loan, and upon receipt by the Custodian
of a certificate signed by a Servicing officer stating that all amounts
required by the Pooling and Servicing Agreement in connection with such
payment, repurchase or substitution have been deposited in the Certificate
Account pursuant to Section 3.08 of the Pooling and Servicing Agreement, the
Custodian shall promptly release the related Mortgage File to the related
Servicer, Seller or the Master Servicer, as the case may be.
From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, the Custodian is hereby authorized to
release to the Master Service the related Mortgage File upon receipt by the
Custodian of a certificate signed by a Servicing Officer requesting possession
of such Mortgage File and certifying as to the reason for such release. The
Master Servicer shall cause each Mortgage File so released to be returned to
the Custodian when the need there or by the Master Servicer no longer exists,
unless: (i) the Mortgage Loan has been liquidated and the Liquidation Pro
ceeds relating to the Mortgage Loan have been deposited in the Certificate
Account; or (ii) the Mortgage File has been delivered to an attorney, or to a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Master
Servicer has delivered to the Custodian a certificate of a Servicing officer
certifying as to the name and address of the Person to which such Mortgage
File or such documents were delivered and the purpose or purposes of such
delivery.
Section 2.6. Audit and Examination of Mortgage Files. Upon
reasonable notice to the Custodian, the Trustee, the Master Servicer, the
Depositor or any agent of any of them will be permitted, during normal
business hours, to examine the Mortgage Files, documents, records and other
papers in possession of or under the control of the Custodian relating to any
or all of the Mortgage Loans.
Section 2.7. Copies of Mortgage Files. Upon the request of
the Trustee, the Master Servicer or the Depositor, the Custodian shall provide
the Trustee, the Master Servicer or the Depositor, as the case may be, with
copies of the documents which constitute the Mortgage Files. The party
requesting such copies shall pay all costs and expenses incurred by the
Custodian in preparing such copies.
ARTICLE III
Concerning the Custodian
Section 3.1. Duties of Custodian. With respect to the
Mortgage Note, the Mortgage and each assignment of Mortgage and other
documents constituting the Mortgage File that are delivered to the Custodian
or that at any time come into the possession of the Custodian, the Custodian
shall be the custodian for and the bailee of the Trustee, for the benefit of
the Certificateholders, until the release of such Mortgage Loans in accordance
with the provisions of Section 2.5 hereof. The Custodian shall hold all
documents constituting each Mortgage File received by it for the exclusive use
and benefit of the Trustee, on behalf of the Certificateholders, until such
time as the Mortgage Loans held by it are released pursuant to the provisions
of Section 2.5 and shall make dis position thereof only in accordance with the
instructions furnished by the Trustee, except otherwise provided herein.
In connection with its duties as Custodian, the Custodian
shall have such duties and responsibilities as are specifically provided
herein and in addition shall: (i) review the Mortgage Files, and the Mortgage
Files with respect to any Replacement Mortgage Loan, as provided in Section
2.3, to determine whether the requirements of Section 2.3 are satisfied and
accept Replacement Mortgage Loans in accordance with the provisions of such
Sections 2.02, 2.04 or 2.05 of the Pooling and Servicing Agreement as
applicable; (ii) segregate and maintain continuous custody of all documents,
instruments and certificates constituting each Mortgage File that is received
and held by it in accordance with the provisions of this Agreement in secure
facilities in accordance with customary standards for such custody; (iii)
subject to the provisions of this Agreement, hold the Mortgage Loans for the
benefit of the Trustee, on behalf of the Certificateholders, and keep such
Mortgage Loans free and clear of all liens, claims and encumbrances whatsoever
arising out of or through claims of creditors of the Custodian; (iv) not
release or deliver any of the Mortgage Loans, except as provided in this
Agreement or in accordance with the direction of the Trustee; (v) record, or
cause to be recorded, each assignment of Mortgage as required by, and in
accordance with, the applicable provisions of this Agreement, (vi) execute
such documents, instruments and assignments, and take such further action, as
is necessary to vest title in the Sellers, the Servicers, the Master Servicer
or the Depositor, as applicable, to the Mortgage Loans, to be released in
accordance with the applicable provisions of this Agreement, in each case as
required by, and in accordance with, the applicable pro visions of this
Agreement; and (vii) do all such further acts and things with respect to the
Mortgage Loans as are specifically provided for in this Agreement or as the
Custodian may be instructed to do by the Trustee, in accordance with the terms
of this Agreement.
Section 3.2. Indemnification. The Trustee hereby agrees to
indemnify and hold harmless the Custodian from and against all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which the
Custodian may incur or with which the Custodian may be threatened by reasons
of its acting as Custodian under this Agreement, including indemnification of
the Custodian against any and all expenses, including attorneys' fees if
counsel for the Custodian has been approved by the Trustee, and the cost of
defending any action, suit or proceedings or resisting any claim.
Notwithstanding the foregoing, it is specifically understood and agreed that
in the event any such claim, liability, loss, action, suit or proceeding or
other expense, fees or charge shall have been caused by reason of any
negligent act, negligent failure to act, or willful misconduct on the part of
the Custodian, or shall constitute a willful breach of the Custodian's duties
hereunder, the indemnification provisions of this Agreement shall not apply.
Section 3.3. Custodian May Own Certificates. The Custodian
in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Custodian.
Section 3.4. Master Servicer to Pay Custodian's Fees and
Expenses. The Master Servicer covenants and agrees to pay to the Custodian
from time to time, and the Custodian shall be entitled to receive, reasonable,
compensation for all services rendered by it in the exercise and performance
of any of the powers and duties hereunder of the Custodian, and the Master
Servicer will pay or reimburse the Custodian upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Custodian in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ), except any such
expense, disbursement or advance as may arise from its negligence or bad
faith.
Section 3.5. Custodian May Resign; Trustee May Remove
Custodian. The Custodian may resign from the obligations and duties hereby
imposed upon it as such obligations and duties relate to its acting as
Custodian of the Mortgage Loans by giving written notice thereof to the
Depositor, the Master Servicer and the Trustee. Upon receiving such notice of
resignation, the Trustee shall either take custody of the Mortgage Files
itself and give prompt notice thereof to the Depositor, the Master Servicer
and the Custodian or promptly appoint a successor custodian by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Custodian and to the successor custodian. If the Trustee shall not have taken
custody of the Mortgage Files and no successor custodian shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Custodian may petition any court of
competent jurisdiction for the appointment of a successor custodian.
The Trustee may remove the Custodian at any time. In such
event, the Trustee shall appoint, or petition a court of competent
jurisdiction to appoint, a successor custodian hereunder. Any successor
custodian shall be a depository institution subject to supervision or
examination by federal or state authority and shall be able to satisfy the
other requirements contained in Section 3.7.
Any resignation or removal of the Custodian and intent of a
successor custodian pursuant to any of provisions of this Section 3.5 shall
become effective upon acceptance of appointment by the successor custodian.
The Trustee shall give prompt notice to the Depositor and the Master Servicer
of the appointment of any successor custodian. Upon its receipt of such
notice, the Master Servicer shall notify each Seller or Servicer of the
appointment and the identity of such successor Custodian. No successor
custodian shall be appointed by the Trustee without the prior approval of the
Depositor and the Master Servicer.
Section 3.6. No Adverse Interests. By its acceptance of each
Mortgage File, the Custodian covenants and warrants to the Depositor, the
Master Servicer and Trustee that: (i) as of the Delivery Date the Custodian
holds no adverse interest, by way of security or otherwise, in any Mortgage
Loan and (ii) the execution of this Agreement and the creation of the
custodial relationship hereunder does not create any interest of the
Custodian, by way of security or otherwise, in and to any Mortgage Loan, other
than the Custodian's rights as Custodian hereunder.
Section 3.7. Merger or Consolidation of Custodian. Any
Person into which the Custodian may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person
succeeding to the business of the Custodian, shall be the successor of the
Custodian hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 3.8. Eligibility of the Custodian. Any Custodian or
successor custodian appointed pursuant to this Agreement shall be a depository
institution subject to supervision or examination by a federal or state
authority, have a combined capital and surplus of at least $10,000,000 and be
qualified to do business in the jurisdiction in which it will hold any
Mortgage File. If the Custodian publishes reports of condition at least
annually pursuant to law or the requirements of the aforesaid supervising or
examining authority, then for purposes of this Section, the combined capital
and surplus of the Custodian shall be deemed to be its combined capital and
surplus as set forth in its most recent published report of condition.
If at any time the Custodian shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in this Article.
Section 3.9. Insurance. The Custodian shall, at its own
expense maintain in full force and effect at all times during the existence of
this Agreement (1) fidelity insurance, (2) theft of documents insurance, (3)
forgery insurance subject to deductibles and (4) errors and omissions
insurance. All such insurance shall be in amounts with standard coverage and
subject to deductibles as is customary for insurance typically maintained by
banks that act as custodians and with Insurance companies not objectionable to
the Trustee. The Custodian shall, upon written request, provide the Depositor,
the Master Servicer or the Trustee with a copy of any policy or certificate of
insurance required to be maintained by the Custodian pursuant to this
Agreement. In the event that such insurance coverage is to be terminated, the
Custodian shall give notice thereof to the Depositor, the Master Servicer and
the Trustee and shall procure a substitute policy or policies of insurance
coverage meeting the requirements set forth above.
ARTICLE IV
Miscellaneous Provisions
Section 4.1. Notices. All notices, requests, consents and
demands and other communications required under this Agreement or pursuant to
any other instrument or document delivered hereunder shall be in writing and,
unless otherwise specifically provided, may be delivered personally, by
telegram or telex, or by registered or certified mail, postage prepaid, return
receipt requested,
(a) if to the Trustee, to:
[Trustee Name]
________________________________
________________________________
________________________________
Attention:______________________;
(b) if to the Master Servicer, to:
[Master Servicer Name]
________________________________
________________________________
________________________________
Attention:______________________;
(c) if to the Depositor, to:
Xxxxxxx Xxxxx Asset Backed Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [ ]; and
(d) if to the Custodian, to:
________________________________
________________________________
________________________________
Attention:______________________;
or to such other addresses as may hereafter be furnished by each party to each
other party hereto.
Section 4.2. Amendments. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto, and neither the Depositor, the
Master Servicer nor the Trustee shall enter into any amendment hereof except
as permitted by the Pooling Agreement. The Trustee shall give prompt notice to
the Custodian of any amendment or supplement to the Pooling Agreement and
shall furnish the Custodian with written copies thereof.
Section 4.3. Governing Law. This Agreement shall be deemed a
contract made under the laws of the State of ______________ and shall be
construed and enforced in accordance with and governed by the laws of the
State of ______________ .
Section 4.4. Recordation of Agreement. To the extent
permitted by applicable law, this Agreement is subject to recordation in all
appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject
to the Mortgages are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected by the Master Servicer
and at its expense on direction by the Trustee, but only upon direction
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
IN WITNESS WHEREOF, the Trustee, the Master Servicer, the
Depositor and the Custodian have caused their names to be signed hereto by
their respective officers thereunto duly authorized and their respective
seals, duly attested, to be hereunto affixed all as of the day and year first
above written.
[TRUSTEE NAME], as Trustee
By:________________________________
Name:
Title:
[SEAL]
ATTEST:____________________
Secretary
[MASTER SERVICER NAME], as Master
Servicer
By:________________________________
Name:
Title:
[SEAL]
ATTEST:____________________
Secretary
XXXXXXX SACHS ASSET BACKED
SECURITIES CORP., as Depositor
By:________________________________
Name:
Title:
[SEAL]
ATTEST:____________________
Secretary
[CUSTODIAN NAME], as Custodian
By:________________________________
Name:
Title:
[SEAL]
ATTEST:____________________
Secretary
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of [ ], 200[ ] before me, a notary public
in and for said State, personally appeared________known to me to be
a________of [Trustee Name], one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
[SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of [ ], 200[ ] before me, a notary public
in and for said State, personally appeared known to me to be a__________of
[Master Servicer Name], one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
[SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of [ ], 200[ ] before me, a notary public
in and for said State, personally appeared_________, known to me to be
a________of [ ], one of the corporations that executed the within instrument,
and also known to me to be the person who executed it an behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
[SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of [ ], 200[ ] before me, a notary public
in and for said State, personally appeared _______________, known to me to be
a _____________________ of [Custodian Name] one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
__________________________
Notary Public
[SEAL]
EXHIBIT D
FORM OF CUSTODIAN FINAL CERTIFICATION
[date]
[Trustee Name], as Trustee
______________________________
______________________________
Attention:____________________
Re: Custodial Agreement dated as of [ ], 200[ ] by and among [Trustee
Name], as Trustee, Xxxxxxx Xxxxx Asset Backed Securities
Corp., as Depositor, [Master Servicer Name], as Master
Servicer and [Custodian Name], as Custodian, [ ] Conduit
Mortgage Pass-Through Certificates, Series [ ]
Ladies and Gentlemen:
In accordance with Section 2.3(c) of the above-captioned
Custodial Agreement, the undersigned, as Custodian, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it has
received:
(i) the original recorded Mortgage, or a certified copy of
the Mortgage in those instances where the public recording office retains the
original; and
(ii) an original recorded assignment of the Mortgage from
the Depositor to the Trustee together with the original recorded assignment or
assignments of the Mortgage showing a complete chain of title from the
originator to the Depositor, or a certified copy of such assignments in those
instances where the public recording office retains the original.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial
Agreement.
__________________________
as Custodian
By:_______________________
Title:____________________
EXHIBIT A
FORM OF CUSTODIAN INITIAL CERTIFICATION
[date]
[Trustee Name], as Trustee
________________________________
________________________________
Attention:______________________
Re: Custodial Agreement dated as of [ ], 200[ ] by and among
[Trustee Name], as Trustee, Xxxxxxx Sachs Asset Backed Securities
Corp. as Depositor, [Master Servicer Name], as Master Servicer
and [Custodian Name] as Custodian, [ ],
Conduit Mortgage Pass-Through Certificates, Series[ ]
Ladies and Gentlemen:
In accordance with Section 2.3(a) of the above-captioned
Custodial Agreement, the undersigned, as Custodian, hereby certifies that it
has received a Mortgage File with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-referenced Custodial
Agreement.
__________________________
as Custodian
By:_______________________
Title:____________________
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
