Exhibit 4.1
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XXXXX ASSET SECURITIZATION, INC.,
as Depositor
MAIA MORTGAGE FINANCE STATUTORY TRUST
as Seller
XXXXX FARGO BANK, N.A.,
as Securities Administrator and as Master Servicer
and
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
---------------------------
POOLING AGREEMENT
Dated as of January 1, 2007
---------------------------
Luminent Mortgage Trust 2007-1
Mortgage Pass-Through Certificates, Series 2007-1
================================================================================
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INTERPRETATION 23
SECTION 1.01 Definitions...................................................23
SECTION 1.02 Calculations With Respect to the Mortgage Loans...............83
SECTION 1.03 Calculations With Respect to Accrued Interest.................83
SECTION 1.04 Rules of Construction.........................................83
ARTICLE II CONVEYANCE OF MORTGAGE LOANS 84
SECTION 2.01 Conveyance of Mortgage Loans to the Depositor.................84
SECTION 2.02 Conveyance of Mortgage Loans to the Issuing Entity............85
SECTION 2.03 Assignment of Mortgage Loans..................................86
SECTION 2.04 Books and Records.............................................86
SECTION 2.05 Review of Documentation.......................................87
SECTION 2.06 Execution and Delivery of Certificates........................88
SECTION 2.07 Representations and Warranties of the Seller with Respect
to the Mortgage Loans.........................................88
SECTION 2.08 Repurchase Obligation.........................................90
SECTION 2.09 Repurchase of Mortgage Loans..................................90
SECTION 2.10 Substitution of Mortgage Loans................................91
SECTION 2.11 Granting Clause...............................................92
SECTION 2.12 Purpose.......................................................94
ARTICLE III REPRESENTATIONS AND WARRANTIES 94
SECTION 3.01 Representations and Warranties of the Seller..................94
SECTION 3.02 Representations and Warranties of the Depositor...............96
SECTION 3.03 Representations and Warranties of the Master Servicer and
Securities Administrator......................................98
ARTICLE IV REPORTS 99
SECTION 4.01 Annual Assessment of Compliance...............................99
SECTION 4.02 Annual Compliance Statement..................................100
SECTION 4.03 Attestation Report...........................................101
SECTION 4.04 Back-Up Certification........................................102
SECTION 4.05 Commission Reporting.........................................102
SECTION 4.06 Distribution Date Report.....................................107
SECTION 4.07 [Reserved]...................................................110
SECTION 4.08 Additional Information.......................................110
SECTION 4.09 Intention of the Parties and Interpretation..................110
SECTION 4.10 Indemnification..............................................110
ARTICLE V MASTER SERVICER 111
SECTION 5.01 Duties of the Master Servicer................................111
i
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Page
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SECTION 5.02 Assignment or Delegation of Duties by the Master
Servicer.....................................................112
SECTION 5.03 Fidelity Bond and Errors and Omission Policy.................112
SECTION 5.04 Compensation to the Master Servicer..........................113
SECTION 5.05 Merger or Consolidation......................................113
SECTION 5.06 Examination Rights...........................................113
SECTION 5.07 Resignation of Master Servicer...............................114
SECTION 5.08 Master Servicer to Act as Servicer; Appointment of
Successor....................................................114
SECTION 5.09 Master Servicer Events of Default; Appointment of
Successor....................................................116
SECTION 5.10 Waiver of Defaults...........................................119
SECTION 5.11 Notification of Master Servicer Default......................120
SECTION 5.12 Limitation on Liability of the Master Servicer...............120
SECTION 5.13 Master Servicer Covenants....................................120
SECTION 5.14 Maintenance of Hazard Insurance and Other Insurance..........121
SECTION 5.15 Indemnification..............................................122
SECTION 5.16 Opinion......................................................122
SECTION 5.17 Realization Upon Defaulted Mortgage Loans; REO
Property.....................................................122
ARTICLE VI THE SECURITIES ADMINISTRATOR 124
SECTION 6.01 Duties of the Securities Administrator.......................124
SECTION 6.02 Records......................................................125
SECTION 6.03 Compensation.................................................125
SECTION 6.04 No Joint Venture.............................................125
SECTION 6.05 Other Activities of Securities Administrator and the
Depositor....................................................125
SECTION 6.06 Certain Matters Affecting the Securities Administrator.......125
SECTION 6.07 Securities Administrator Not Liable for Certificates or
` Mortgage Loans...............................................127
SECTION 6.08 Securities Administrator May Own Certificates................127
SECTION 6.09 Eligibility Requirements for the Securities Administrator....127
SECTION 6.10 Resignation and Removal of the Securities Administrator......128
SECTION 6.11 Successor Securities Administrator...........................129
SECTION 6.12 Merger or Consolidation of Securities Administrator..........129
SECTION 6.13 Limitation of Liability......................................129
SECTION 6.14 Opinion......................................................130
ARTICLE VII CONCERNING THE TRUSTEE 130
SECTION 7.01 Duties of Trustee............................................130
SECTION 7.02 Rights of Trustee............................................132
SECTION 7.03 Trustee Not Liable for Certificates..........................133
SECTION 7.04 Trustee May Own Certificates.................................133
SECTION 7.05 Eligibility Requirements for Trustee.........................133
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Page
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SECTION 7.06 Resignation and Removal of Trustee...........................134
SECTION 7.07 Successor Trustee............................................134
SECTION 7.08 Merger or Consolidation of Trustee...........................135
SECTION 7.09 Appointment of Co-Trustee or Separate Trustee................135
SECTION 7.10 Indemnification of Trustee...................................137
SECTION 7.11 Fees and Expenses of Trustee.................................137
ARTICLE VIII TRUST ADMINISTRATION 137
SECTION 8.01 Distribution Account.........................................137
SECTION 8.02 Reserve Accounts.............................................140
SECTION 8.03 Calculation of LIBOR.........................................142
SECTION 8.04 Supplemental Interest Trust..................................143
SECTION 8.05 Priorities of Distribution...................................149
SECTION 8.06 Allocation of Realized Losses................................154
SECTION 8.07 REMIC Distributions..........................................155
SECTION 8.08 Indemnification..............................................165
SECTION 8.09 Final Maturity Reserve Trust.................................166
SECTION 8.10 Grantor Trust Administration.................................169
SECTION 8.11 Allocation of Group II Net Deferred Interest.................170
ARTICLE IX THE CERTIFICATES 170
SECTION 9.01 The Certificates.............................................170
SECTION 9.02 Certificate Register; Registration of Transfer and Exchange
of Certificates..............................................171
SECTION 9.03 Mutilated, Destroyed, Lost or Stolen Certificates............177
SECTION 9.04 Persons Deemed Owners........................................178
SECTION 9.05 Access to List of Certificateholders' Names and Addresses....178
SECTION 9.06 Maintenance of Office or Agency..............................178
SECTION 9.07 Limitation on Rights of Holders..............................178
SECTION 9.08 Acts of Holders of Certificates..............................179
ARTICLE X THE DEPOSITOR 181
SECTION 10.01 Liabilities of the Depositor.................................181
SECTION 10.02 Merger or Consolidation of the Depositor.....................181
SECTION 10.03 Limitation on Liability of the Depositor and Others..........181
ARTICLE XI TERMINATION 182
SECTION 11.01 Termination upon Liquidation or Purchase of all Mortgage
Loans........................................................182
SECTION 11.02 Final Distribution on the Certificates.......................182
SECTION 11.03 Additional Termination Requirements..........................183
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ARTICLE XII REMIC ADMINISTRATION 185
SECTION 12.01 REMIC Administration.........................................185
SECTION 12.02 Prohibited Transactions and Activities.......................187
SECTION 12.03 Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status.........................................187
ARTICLE XIII AMENDMENT 188
SECTION 13.01 Without Consent of the Certificateholders....................188
SECTION 13.02 With Consent.................................................188
SECTION 13.03 Procedure and Notice.........................................189
ARTICLE XIV MISCELLANEOUS PROVISIONS 189
SECTION 14.01 Binding Nature of Agreement; Assignment......................189
SECTION 14.02 Entire Agreement.............................................190
SECTION 14.03 Counterparts.................................................190
SECTION 14.04 Provision of Information.....................................190
SECTION 14.05 Governing Law................................................190
SECTION 14.06 Notices......................................................190
SECTION 14.07 Severability of Provisions...................................192
SECTION 14.08 No Waivers...................................................192
SECTION 14.09 Headings Not to Affect Interpretation........................193
SECTION 14.10 No Petitions.................................................193
SECTION 14.11 Certificates Fully Paid and Nonassessable....................193
SECTION 14.12 Protection of Assets.........................................193
SECTION 14.13 Third Party Beneficiary......................................193
iv
EXHIBITS
Exhibit A-1 Form of Class A Certificate
Exhibit A-2 Form of Class B Certificate
Exhibit A-3 Form of Class I-C and II-C Certificate
Exhibit A-4 Form of Class I-C-2 Certificate
Exhibit A-5 Form of Class P Certificate
Exhibit A-6 Form of Residual Certificate
Exhibit B Information Fields for Mortgage Loan Schedule
Exhibit C Contents of each Mortgage File
Exhibit D Form of Request for Release
Exhibit E Form of Transferor Certificate
Exhibit F-1 Form of Investment Letter (Non-Rule 144A)
Exhibit F-2 Form of Investment Letter (Rule 144A)
Exhibit G Form of Benefit Plan Affidavit
Exhibit H Form of Affidavit Regarding Transfer of Residual Certificate
Exhibit I Additional Form 10-D Disclosure
Exhibit J Additional Form 10-K Disclosure
Exhibit K Additional Form 8-K Disclosure
Exhibit L Additional Disclosure Notification
Exhibit M Form of Cap Confirmation
Exhibit N Form of Swap Confirmation
Exhibit O Triad Commitment Letters
Exhibit 1122 Servicing Criteria
Exhibit SOX Sarbanes Oxley Certificate
SCHEDULES
Schedule A-1 Group 1 Mortgage Loan Schedule
Schedule A-2 Group 2 Mortgage Loan Schedule
v
This POOLING AGREEMENT, dated as of January 1, 2007, is by and among XXXXX
ASSET SECURITIZATION, INC., a Delaware corporation, as depositor (the
"Depositor"), MAIA MORTGAGE FINANCE STATUTORY TRUST, a Maryland business trust,
as seller (the "Seller"), XXXXX FARGO BANK, N.A., a national banking
association, as securities administrator (the "Securities Administrator") and as
master servicer (the "Master Servicer"), and HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
WHEREAS, the Seller seeks to sell to the Depositor and the Depositor seeks
to purchase from the Seller all of the right, title and interest of the Seller
in two groups of adjustable-rate first lien Mortgage Loans identified in
Schedules A-1 and A-2 hereto on a servicing-released basis pursuant to this
Agreement;
WHEREAS, the Seller will make representations and warranties as set forth
herein with respect to the Mortgage Loans and will assign to the Depositor
certain representations and warranties that the Seller has received with respect
to such Mortgage Loans;
WHEREAS, at the Closing Date the Depositor will be the owner of the
Mortgage Loans and the other property being conveyed and assigned by it to the
Issuing Entity hereunder for inclusion in the Trust Fund on the Closing Date;
WHEREAS, on the Closing Date, the Depositor will transfer to the Issuing
Entity the Mortgage Loans and the other property constituting the Trust Fund,
and the Issuing Entity will issue the Certificates evidencing the entire
interest in the Issuing Entity;
WHEREAS, the Depositor will receive the Certificates in consideration for
the Mortgage Loans and other property being conveyed and assigned by it to the
Issuing Entity and will sell the Certificates to various purchasers.
WHEREAS, various servicers are servicing the Mortgage Loans pursuant to
various Servicing Agreements, each Servicer is willing to service the Mortgage
Loans for the benefit of the Issuing Entity;
WHEREAS, the Master Servicer is willing to master service the Mortgage
Loans for the benefit of the Issuing Entity;
WHEREAS, the Securities Administrator is willing to provide certain
services and reports with respect to the Certificates;
WHEREAS, the Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple Classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Trust Fund created hereunder. The Certificates will consist of 25 Classes of
Certificates, designated as (i) the Class I-A-1, Class I-A-2, Class I-B-1, Class
I-B-2, Class I-B-3, Class I-B-4, Class I-C-1, Class I-C-2, Class I-P
Certificates, (ii) Class II-A-1, Class II-A-2, Class II-A-3, Class II-B-1, Class
1
II-B-2, Class II-B-3, Class II-B-4, Class II-B-5, Class II-B-6, Class II-C, and
Class II-P Certificates and (iii) the Class R and RX Certificates; and
WHEREAS, the descriptions of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC
V, REMIC VI, REMIC VII, REMIC A1, REMIC A2, REMIC A3, REMIC A4, REMIC A5 and
REMIC A6 that follow are part of the Preliminary Statement. Any inconsistencies
or ambiguities in this Agreement or in the administration of this Agreement
shall be resolved pursuant to the terms of Article XIII in a manner that
preserves the validity of such REMIC elections described below.
2
REMIC I
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Group I Mortgage Loans and certain
other related assets subject to this Agreement (but exclusive of the related
Reserve Account, the related Non-Mortgagor Prepayment Premium Payment Amount,
the Swap Agreement, the Cap Agreement, the Supplemental Interest Trust, the Swap
Account, the Cap Account and the Class I-C-2 Grantor Trust) as a real estate
mortgage investment conduit (a "REMIC") for federal income tax purposes, and
such segregated pool of assets will be designated as "REMIC I." The Class R-I
Interest will represent the sole class of "residual interests" in REMIC I for
purposes of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the Uncertificated REMIC I Pass-Through
Rate, the initial Uncertificated Balance and, solely for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each of the REMIC I Regular Interests (as defined herein). None of the
REMIC I Regular Interests will be certificated.
Uncertified Latest Possible
REMIC I Initial Maturity
Designation Pass-Through Rate Uncertificated Balance Date(1)
--------------------------------------------------------------------------------
I-1-A Variable(2) $10,614,136.15 November 25, 2036
I-1-B Variable(2) $10,614,136.15 November 25, 2036
I-2-A Variable(2) $10,091,639.14 November 25, 2036
I-2-B Variable(2) $10,091,639.14 November 25, 2036
I-3-A Variable(2) $9,594,900.67 November 25, 2036
I-3-B Variable(2) $9,594,900.67 November 25, 2036
I-4-A Variable(2) $9,122,648.69 November 25, 2036
I-4-B Variable(2) $9,122,648.69 November 25, 2036
I-5-A Variable(2) $8,735,200.25 November 25, 2036
I-5-B Variable(2) $8,735,200.25 November 25, 2036
I-6-A Variable(2) $8,287,566.21 November 25, 2036
I-6-B Variable(2) $8,287,566.21 November 25, 2036
I-7-A Variable(2) $12,994,444.97 November 25, 2036
I-7-B Variable(2) $12,994,444.97 November 25, 2036
I-8-A Variable(2) $7,154,713.08 November 25, 2036
I-8-B Variable(2) $7,154,713.08 November 25, 2036
I-9-A Variable(2) $6,805,059.95 November 25, 2036
I-9-B Variable(2) $6,805,059.95 November 25, 2036
I-10-A Variable(2) $6,472,501.65 November 25, 2036
I-10-B Variable(2) $6,472,501.65 November 25, 2036
I-11-A Variable(2) $6,156,201.98 November 25, 2036
I-11-B Variable(2) $6,156,201.98 November 25, 2036
I-12-A Variable(2) $5,855,365.62 November 25, 2036
3
Uncertified Latest Possible
REMIC I Initial Maturity
Designation Pass-Through Rate Uncertificated Balance Date(1)
--------------------------------------------------------------------------------
I-12-B Variable(2) $5,855,365.62 November 25, 2036
I-13-A Variable(2) $5,569,236.24 November 25, 2036
I-13-B Variable(2) $5,569,236.24 November 25, 2036
I-14-A Variable(2) $5,498,271.63 November 25, 2036
I-14-B Variable(2) $5,498,271.63 November 25, 2036
I-15-A Variable(2) $5,026,895.38 November 25, 2036
I-15-B Variable(2) $5,026,895.38 November 25, 2036
I-16-A Variable(2) $4,781,351.10 November 25, 2036
I-16-B Variable(2) $4,781,351.10 November 25, 2036
I-17-A Variable(2) $4,547,804.66 November 25, 2036
I-17-B Variable(2) $4,547,804.66 November 25, 2036
I-18-A Variable(2) $4,406,558.46 November 25, 2036
I-18-B Variable(2) $4,406,558.46 November 25, 2036
I-19-A Variable(2) $4,109,834.44 November 25, 2036
I-19-B Variable(2) $4,109,834.44 November 25, 2036
I-20-A Variable(2) $3,909,132.16 November 25, 2036
I-20-B Variable(2) $3,909,132.16 November 25, 2036
I-21-A Variable(2) $3,718,233.90 November 25, 2036
I-21-B Variable(2) $3,718,233.90 November 25, 2036
I-22-A Variable(2) $3,536,660.55 November 25, 2036
I-22-B Variable(2) $3,536,660.55 November 25, 2036
I-23-A Variable(2) $3,363,956.47 November 25, 2036
I-23-B Variable(2) $3,363,956.47 November 25, 2036
I-24-A Variable(2) $3,199,688.24 November 25, 2036
I-24-B Variable(2) $3,199,688.24 November 25, 2036
I-25-A Variable(2) $3,043,443.67 November 25, 2036
I-25-B Variable(2) $3,043,443.67 November 25, 2036
I-26-A Variable(2) $3,053,706.62 November 25, 2036
I-26-B Variable(2) $3,053,706.62 November 25, 2036
I-27-A Variable(2) $3,190,365.19 November 25, 2036
I-27-B Variable(2) $3,190,365.19 November 25, 2036
I-28-A Variable(2) $2,585,362.02 November 25, 2036
I-28-B Variable(2) $2,585,362.02 November 25, 2036
I-29-A Variable(2) $2,459,379.51 November 25, 2036
I-29-B Variable(2) $2,459,379.51 November 25, 2036
I-30-A Variable(2) $2,358,621.62 November 25, 2036
4
Uncertified Latest Possible
REMIC I Initial Maturity
Designation Pass-Through Rate Uncertificated Balance Date(1)
--------------------------------------------------------------------------------
I-30-B Variable(2) $2,358,621.62 November 25, 2036
I-31-A Variable(2) $2,402,766.61 November 25, 2036
I-31-B Variable(2) $2,402,766.61 November 25, 2036
I-32-A Variable(2) $2,105,957.95 November 25, 2036
I-32-B Variable(2) $2,105,957.95 November 25, 2036
I-33-A Variable(2) $2,003,422.52 November 25, 2036
I-33-B Variable(2) $2,003,422.52 November 25, 2036
I-34-A Variable(2) $1,905,878.31 November 25, 2036
I-34-B Variable(2) $1,905,878.31 November 25, 2036
I-35-A Variable(2) $1,813,082.42 November 25, 2036
I-35-B Variable(2) $1,813,082.42 November 25, 2036
I-36-A Variable(2) $1,724,803.73 November 25, 2036
I-36-B Variable(2) $1,724,803.73 November 25, 2036
I-37-A Variable(2) $1,640,822.41 November 25, 2036
I-37-B Variable(2) $1,640,822.41 November 25, 2036
I-38-A Variable(2) $1,560,929.28 November 25, 2036
I-38-B Variable(2) $1,560,929.28 November 25, 2036
I-39-A Variable(2) $1,484,925.40 November 25, 2036
I-39-B Variable(2) $1,484,925.40 November 25, 2036
I-40-A Variable(2) $1,412,621.44 November 25, 2036
I-40-B Variable(2) $1,412,621.44 November 25, 2036
I-41-A Variable(2) $1,343,837.34 November 25, 2036
I-41-B Variable(2) $1,343,837.34 November 25, 2036
I-42-A Variable(2) $1,278,401.77 November 25, 2036
I-42-B Variable(2) $1,278,401.77 November 25, 2036
I-43-A Variable(2) $1,216,151.77 November 25, 2036
I-43-B Variable(2) $1,216,151.77 November 25, 2036
I-44-A Variable(2) $1,156,932.26 November 25, 2036
I-44-B Variable(2) $1,156,932.26 November 25, 2036
I-45-A Variable(2) $1,100,595.76 November 25, 2036
I-45-B Variable(2) $1,100,595.76 November 25, 2036
I-46-A Variable(2) $1,047,001.93 November 25, 2036
I-46-B Variable(2) $1,047,001.93 November 25, 2036
I-47-A Variable(2) $996,017.28 November 25, 2036
I-47-B Variable(2) $996,017.28 November 25, 2036
I-48-A Variable(2) $947,514.79 November 25, 2036
5
Uncertified Latest Possible
REMIC I Initial Maturity
Designation Pass-Through Rate Uncertificated Balance Date(1)
--------------------------------------------------------------------------------
I-48-B Variable(2) $947,514.79 November 25, 2036
I-49-A Variable(2) $901,373.68 November 25, 2036
I-49-B Variable(2) $901,373.68 November 25, 2036
I-50-A Variable(2) $857,478.98 November 25, 2036
I-50-B Variable(2) $857,478.98 November 25, 2036
I-51-A Variable(2) $815,721.35 November 25, 2036
I-51-B Variable(2) $815,721.35 November 25, 2036
I-52-A Variable(2) $1,226,011.00 November 25, 2036
I-52-B Variable(2) $1,226,011.00 November 25, 2036
I-53-A Variable(2) $799,938.46 November 25, 2036
I-53-B Variable(2) $799,938.46 November 25, 2036
I-54-A Variable(2) $811,948.90 November 25, 2036
I-54-B Variable(2) $811,948.90 November 25, 2036
I-55-A Variable(2) $7,393,969.52 November 25, 2036
I-55-B Variable(2) $7,393,969.52 November 25, 2036
I-56-A Variable(2) $312,045.68 November 25, 2036
I-56-B Variable(2) $312,045.68 November 25, 2036
I-57-A Variable(2) $262,443.07 November 25, 2036
I-57-B Variable(2) $262,443.07 November 25, 2036
I-58-A Variable(2) $249,659.40 November 25, 2036
I-58-B Variable(2) $249,659.40 November 25, 2036
I-59-A Variable(2) $237,498.27 November 25, 2036
I-59-B Variable(2) $237,498.27 November 25, 2036
I-60-A Variable(2) $225,929.37 November 25, 2036
I-60-B Variable(2) $225,929.37 November 25, 2036
I-61-A Variable(2) $214,923.86 November 25, 2036
I-61-B Variable(2) $214,923.86 November 25, 2036
I-62-A Variable(2) $204,454.31 November 25, 2036
I-62-B Variable(2) $204,454.31 November 25, 2036
I-63-A Variable(2) $194,494.63 November 25, 2036
I-63-B Variable(2) $194,494.63 November 25, 2036
I-64-A Variable(2) $185,020.00 November 25, 2036
I-64-B Variable(2) $185,020.00 November 25, 2036
I-65-A Variable(2) $176,006.79 November 25, 2036
I-65-B Variable(2) $176,006.79 November 25, 2036
I-66-A Variable(2) $167,432.54 November 25, 2036
6
Uncertified Latest Possible
REMIC I Initial Maturity
Designation Pass-Through Rate Uncertificated Balance Date(1)
--------------------------------------------------------------------------------
I-66-B Variable(2) $167,432.54 November 25, 2036
I-67-A Variable(2) $159,275.88 November 25, 2036
I-67-B Variable(2) $159,275.88 November 25, 2036
I-68-A Variable(2) $151,516.47 November 25, 2036
I-68-B Variable(2) $151,516.47 November 25, 2036
I-69-A Variable(2) $144,134.97 November 25, 2036
I-69-B Variable(2) $144,134.97 November 25, 2036
I-70-A Variable(2) $137,112.99 November 25, 2036
I-70-B Variable(2) $137,112.99 November 25, 2036
I-71-A Variable(2) $130,433.00 November 25, 2036
I-71-B Variable(2) $130,433.00 November 25, 2036
I-72-A Variable(2) $124,078.37 November 25, 2036
I-72-B Variable(2) $124,078.37 November 25, 2036
I-73-A Variable(2) $118,033.25 November 25, 2036
I-73-B Variable(2) $118,033.25 November 25, 2036
I-74-A Variable(2) $112,282.56 November 25, 2036
I-74-B Variable(2) $112,282.56 November 25, 2036
I-75-A Variable(2) $106,811.98 November 25, 2036
I-75-B Variable(2) $106,811.98 November 25, 2036
I-76-A Variable(2) $101,607.85 November 25, 2036
I-76-B Variable(2) $101,607.85 November 25, 2036
I-77-A Variable(2) $96,657.21 November 25, 2036
I-77-B Variable(2) $96,657.21 November 25, 2036
I-78-A Variable(2) $91,947.71 November 25, 2036
I-78-B Variable(2) $91,947.71 November 25, 2036
I-79-A Variable(2) $990,171.96 November 25, 2036
I-79-B Variable(2) $990,171.96 November 25, 2036
I-80-A Variable(2) $39,220.60 November 25, 2036
I-80-B Variable(2) $39,220.60 November 25, 2036
I-81-A Variable(2) $37,308.90 November 25, 2036
I-81-B Variable(2) $37,308.90 November 25, 2036
I-82-A Variable(2) $35,490.34 November 25, 2036
I-82-B Variable(2) $35,490.34 November 25, 2036
I-83-A Variable(2) $33,760.41 November 25, 2036
I-83-B Variable(2) $33,760.41 November 25, 2036
I-84-A Variable(2) $658,581.98 November 25, 2036
7
Uncertified Latest Possible
REMIC I Initial Maturity
Designation Pass-Through Rate Uncertificated Balance Date(1)
--------------------------------------------------------------------------------
I-84-B Variable(2) $658,581.98 November 25, 2036
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group I Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC I Regular
Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC I
Pass-Through Rate" herein.
8
REMIC II
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Interest will represent the sole class
of "residual interests" in REMIC II for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the Uncertificated REMIC
II Pass-Through Rate, the initial Uncertificated Balance, and solely for
purposes of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC II Regular Interests. None
of the REMIC II Regular Interests will be certificated.
Uncertificated Initial
REMIC II Uncertificated Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
I-LTAA Variable(2) $423,142,869.66 November 25, 2036
I-LTA-1 Variable(2) $3,711,140.00 November 25, 2036
I-LTA-2 Variable(2) $412,350.00 November 25, 2036
I-LTB-1 Variable(2) $82,040.00 November 25, 2036
I-LTB-2 Variable(2) $47,500.00 November 25, 2036
I-LTB-3 Variable(2) $21,590.00 November 25, 2036
I-LTB-4 Variable(2) $21,590.00 November 25, 2036
I-LTZZ Variable(2) $4,339,358.77 November 25, 0000
X-XXX Variable(2) $100.00 November 25, 2036
I-LTR Variable(2) $100.00 November 25, 2036
I-LTIO Variable(2) (3) November 25, 2036
-------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group I Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC II Regular
Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC II
Pass-Through Rate" herein.
(3) REMIC II Regular Interest I-LTIO will have an Uncertificated Balance as
specified in the definition thereof.
The foregoing REMIC I and REMIC II structure is intended to cause all the
cash from the Group I Mortgage Loans to flow through REMIC III as cash flow on a
REMIC III Regular Interest, without creating any shortfall, actual or potential
(other than for losses), to any REMIC III Regular Interest. To the extent that
the structure is believed to diverge from such intention, the party identifying
such ambiguity or drafting error shall notify the other parties hereto, and the
parties hereto shall attempt to resolve such ambiguity or drafting error in
accordance with Section 13.01 hereto.
9
REMIC III
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC III." The Class R-III Interest will represent the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions.
The following table irrevocably sets forth the designation, the Uncertificated
REMIC III Pass-Through Rate, the initial Uncertificated Balance and solely for
purposes of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC III Regular Interests.
Uncertificated Initial
REMIC III Uncertificated Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ---------------- -----------------
I-A-1 Variable(2) $371,114,000 November 25, 2036
I-A-2 Variable(2) $41,235,000 November 25, 2036
I-B-1 Variable(2) $8,204,000 November 25, 2036
I-B-2 Variable(2) $4,750,000 November 25, 2036
I-B-3 Variable(2) $2,159,000 November 25, 2036
I-B-4 Variable(2) $2,159,000 November 25, 2036
I-C-1 (3) (3) November 25, 2036
I-P (4) $100 November 25, 2036
I-Swap-IO (5) (5) November 25, 2036
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group I Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC III
Regular Interest.
(2) Interest will accrue on these REMIC III Regular Interests at a per annum
rate equal to the least of (i) LIBOR plus the Pass-Through Margin for the
Corresponding Class of Certificates, (b) 10.50% and (c) the Group I REMIC
Cap.
For purposes of the REMIC Provisions, with respect to each REMIC III
Regular Interest, each reference to a Net Rate Cap in the applicable
Pass-Through Rate of the Corresponding Class of Certificates shall be
deemed to be a reference to the Group I REMIC Cap; therefore, on any
Distribution Date on which the Pass-Through Rate for the Corresponding
Class of Certificates exceeds the Group I REMIC Cap, interest accruals
based on such excess shall be treated as having been paid from the related
Reserve Account or the Supplemental Interest Trust, as applicable. On any
Distribution Date on which the Pass-Through Rate on a Class of Certificates
is based on the applicable Net Rate Cap, the excess of the amount of
interest that would have accrued on such Class of Certificates if the Group
I REMIC Cap were substituted for the applicable Net Rate Cap over the
interest accrued on such Class of Certificates based on the related Net
Rate Cap shall be treated as having been paid by the related Class of
Certificates to the Supplemental Interest Trust, all pursuant to and as
further provided in Section 8.04 herein.
(3) For federal income tax purposes, the Class I-C-1 REMIC III Regular Interest
will have an initial Uncertificated Balance equal to the Group I Initial
Overcollateralization Amount. The Class I-C-1 REMIC III Regular Interest
will bear interest at its variable Pass-Through Rate on its Notional
Amount. The Class I-C-1 REMIC III Regular Interest will not accrue interest
on its Uncertificated Balance.
(4) The Class I-P REMIC III Regular Interest will not bear interest. The Class
I-P REMIC III Regular Interest will be entitled to Prepayment Premiums
received with respect to the Group I Mortgage Loans.
(5) For federal income tax purposes, the Class I-Swap-IO REMIC III Regular
Interest will be entitled to 100% of the amounts received in respect of
REMIC II Regular Interest I-LTIO.
The Cut-off Date Principal Balance of the Group I Mortgage Loans is
$431,778,638.43.
10
REMIC IV
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Class I-B-4 REMIC III Regular
Interest as a REMIC for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC IV." The Class RX-IV Interest represents the
sole class of "residual interests" in REMIC IV for purposes of the REMIC
Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Uncertificated Balance for the Class I-B-4 REMIC
IV Regular Interest that represents a "regular interest" in REMIC IV created
hereunder:
Initial Uncertificated Latest Possible
Class Designation Pass-Through Rate Balance Maturity Date(1)
----------------- ----------------- ---------------------- ----------------
Class I-B-4 (2) $2,159,000 November 25, 2036
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group I Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for the Class I-B-4 REMIC
IV Regular Interest.
(2) The Class I-B-4 REMIC IV Regular Interest will receive 100% of amounts
received in respect of the Class I-B-4 REMIC III Regular Interest.
11
REMIC V
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Class I-C-1 REMIC III Regular
Interest as a REMIC for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC V." The Class RX-V Interest represents the
sole class of "residual interests" in REMIC V for purposes of the REMIC
Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Uncertificated Balance for the Class I-C-1 REMIC V
Regular Interest that represents a "regular interest" in REMIC V created
hereunder:
Initial Uncertificated Latest Possible
Class Designation Pass-Through Rate Balance Maturity Date(1)
----------------- ----------------- ---------------------- ----------------
Class I-C-1 (2) (2) November 25, 2036
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group I Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for the Class I-C-1 REMIC
V Regular Interest.
(2) The Class I-C-1 REMIC V Regular Interest will receive 100% of amounts
received in respect of the Class I-C-1 REMIC III Regular Interest.
12
REMIC VI
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Class I-P REMIC III Regular Interest
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as "REMIC VI." The Class RX-VI Interest represents the sole
class of "residual interests" in REMIC VI for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Uncertificated Balance for the Class I-P REMIC VI
Regular Interest that represents a "regular interest" in REMIC VI created
hereunder:
Initial
Pass-Through Uncertificated Latest Possible
Class Designation Rate Balance Maturity Date(1)
----------------- ------------ -------------- ----------------
Class I-P (2) $100.00 November 25, 2036
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group I Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for the Class I-P REMIC
VI Regular Interest.
(2) The Class I-P REMIC VI Regular Interest will receive 100% of amounts
received in respect of the Class I-P REMIC III Regular Interest.
13
REMIC VII
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Class I-Swap-IO REMIC III Regular
Interest as a REMIC for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC VII." The Class RX-VII Interest represents
the sole class of "residual interests" in REMIC VII for purposes of the REMIC
Provisions.
The following table sets forth (or describes) the designation, Pass-Through
Rate and initial Uncertificated Balance for the Class I-Swap-IO REMIC VII
Regular Interest comprising the "regular interest" in REMIC VII for purposes of
the REMIC Provisions:
Initial
Uncertificated Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- -------------- ----------------
I-Swap-IO (2) (2) November 25, 2036
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each REMIC VII Regular Interest.
(2) The Class I-Swap-IO REMIC VII Regular Interest will receive 100% of amounts
received in respect of the Class I-Swap-IO REMIC III Regular Interest.
14
REMIC A1
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Group II Mortgage Loans and certain
other related assets subject to this Agreement (but exclusive of the related
Non-Mortgagor Prepayment Premium Payment Amount, the related Reserve Account,
the Class II-C Grantor Trust, the Final Maturity Reserve Trust and the Final
Maturity Reserve Account) as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC A1." The Class R-A1
Interest will represent the sole class of "residual interests" in REMIC A1 for
purposes of the REMIC Provisions. The following table irrevocably sets forth the
designation, the Uncertificated REMIC A1 Pass-Through Rate, the initial
Uncertificated Balance, and solely for purposes of satisfying Treasury
Regulations Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC A1 Regular Interests. None of the REMIC A1 Regular Interests
will be certificated.
Uncertificated
REMIC A1 Initial Latest Possible
Designation Pass-Through Rate Uncertificated Balance Maturity Date(1)
----------- ----------------- ---------------------- ----------------
II-30 Variable(2) $168,729,943.91 December 25, 2046
II-40 Variable(2) $106,331,604.91 December 25, 2046
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group II Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC A1 Regular
Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC A1
Pass-Through Rate" herein.
15
REMIC A2
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the REMIC A1 Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC A2." The Class R-A2 Interest will represent the sole
class of "residual interests" in REMIC A2 for purposes of the REMIC Provisions.
The following table irrevocably sets forth the designation, the Uncertificated
REMIC A2 Pass-Through Rate, the initial Uncertificated Balance, and solely for
purposes of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC A2 Regular Interests. None
of the REMIC A2 Regular Interests will be certificated.
Uncertificated
REMIC A2 Pass- Initial Uncertificated Latest Possible
Designation Through Rate Balance Maturity Date(1)
----------- -------------- ---------------------- ------------------
II-LTAA Variable(2) $269,560,121.84 December 25, 2046
II-LTA-1 Variable(2) $1,538,980.00 December 25, 2046
II-LTA-2 Variable(2) $769,480.00 December 25, 2046
II-LTA-3 Variable(2) $256,490.00 December 25, 2046
II-LTB-1 Variable(2) $57,760.00 December 25, 2046
II-LTB-2 Variable(2) $34,380.00 December 25, 2046
II-LTB-3 Variable(2) $13,750.00 December 25, 2046
II-LTB-4 Variable(2) $26,130.00 December 25, 2046
II-LTB-5 Variable(2) $15,130.00 December 25, 2046
II-LTB-6 Variable(2) $13,750.00 December 25, 2046
II-LTZZ Variable(2) $2,775,376.98 December 25, 2046
II-LTR Variable(2) $100.00 December 25, 2046
II-LTP Variable(2) $100.00 December 25, 2046
II-LTF (2) (3) December 25, 2046
--------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group II Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC A2 Regular
Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC A2
Pass-Through Rate" herein.
(3) The REMIC A2 Regular Interest II-LTF will have an Uncertificated Balance as
specified in the definition thereof.
The foregoing REMIC A1 and REMIC A2 structure is intended to cause all the
cash from the Group II Mortgage Loans to flow through REMIC A3 as cash flow on a
REMIC A3 Regular Interest, without creating any shortfall, actual or potential
(other than for losses), to any REMIC A3 Regular Interest. To the extent that
the structure is believed to diverge from such intention, the party identifying
such ambiguity or drafting error shall notify the other parties hereto, and the
parties hereto shall attempt to resolve such ambiguity or drafting error in
accordance with Section 13.01 hereto.
16
REMIC A3
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the REMIC A2 Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC A3." The Class R-A3 Interest will represent the sole
class of "residual interests" in REMIC A3 for purposes of the REMIC Provisions.
The following table irrevocably sets forth the designation, the Uncertificated
REMIC A3 Pass-Through Rate, the initial Uncertificated Balance and solely for
purposes of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC A3 Regular Interests.
Uncertificated
REMIC A3 Pass- Initial Uncertificated Latest Possible
Designation Through Rate Balance Maturity Date(1)
----------- ---------------- ---------------------- -----------------
II-A-1 Variable(2) $153,898,000 December 25, 2046
II-A-2 Variable(2) $76,948,000 December 25, 2046
II-A-3 Variable(2) $25,649,000 December 25, 2046
II-B-1 Variable(2) $5,776,000 December 25, 2046
II-B-2 Variable(2) $3,438,000 December 25, 2046
II-B-3 Variable(2) $1,375,000 December 25, 2046
II-B-4 Variable(2) $2,613,000 December 25, 2046
II-B-5 Variable(2) $1,513,000 December 25, 2046
II-B-6 Variable(2) $1,375,000 December 25, 2046
II-C Variable(3) (3) December 25, 2046
II-F Variable(4) (4) December 25, 2046
II-P (5) $100 December 25, 2046
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group II Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each Class of
Certificates that represents one or more of the "regular interests" in
REMIC A3 and each Uncertificated REMIC A3 Regular Interest.
(2) Interest will accrue on these REMIC A3 Regular Interests at a per annum
rate equal to the least of (i) LIBOR plus the Pass-Through Margin for the
Corresponding Class of Certificates, (b) 10.50% and (c) the Group II REMIC
Cap.
(3) For federal income tax purposes, the Class II-C REMIC A3 Regular Interest
will have an initial Uncertificated Balance equal to the Group II Initial
Overcollateralization Amount. The Class II-C REMIC A3 Regular Interest will
bear interest at its variable Pass-Through Rate on its Notional Amount. The
Class II-C REMIC A3 Regular Interest will not accrue interest on its
Uncertificated Balance.
(4) The Class II-F REMIC A3 Regular Interest will be entitled to 100% of the
amounts received in respect of REMIC A2 Regular Interest II-LTF.
(5) The Class II-P REMIC A3 Regular Interest will not bear interest. The Class
II-P REMIC A3 Regular Interest will be entitled to Prepayment Premiums
received in respect of the Group II Mortgage Loans.
The Cut-off Date Balance of the Group II Mortgage Loans is $275,061,548.82.
The Cut-off Date Balance for the Group II Mortgage Loans with original terms to
maturity of 30 years or less is $168,729,943.91. The Cut-off Date Balance for
17
the Group II Mortgage Loans with original terms to maturity of more than 30
years is $106,331,604.91.
18
REMIC A4
As provided herein, the Securities Administrator shall elect to treat the
segregated pool of assets consisting of the Class II-B-6 REMIC A3 Regular
Interest as a REMIC for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC A4." The Class RX-A4 Interest represents the
sole class of "residual interests" in REMIC A4 for purposes of the REMIC
Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Uncertificated Balance for the Class II-B-6 REMIC
A3 Regular represents a "regular interest" in REMIC A4 created hereunder:
Initial Uncertificated Latest Possible
Class Designation Pass-Through Rate Balance Maturity Date(1)
----------------- ----------------- ---------------------- ----------------
Class II-B-6 (2) $1,375,000.00 December 25, 2046
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group II Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for the Class II-B-6
REMIC A4 Regular Interest.
(2) The Class II-B-6 REMIC A4 Regular Interest will receive 100% of amounts
received in respect of the Class II-B-6 REMIC A3 Regular Interest.
19
REMIC A5
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Class II-C REMIC A3 Regular Interest
and the Class II-F REMIC A3 Regular Interest as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC A5."
The Class RX-A5 Interest represents the sole class of "residual interests" in
REMIC A5 for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Uncertificated Balance for the Class II-C REMIC A5
Regular Interest and the Class II-F REMIC A3 Regular Interest that represent the
"regular interests" in REMIC A5 created hereunder:
Initial Uncertificated Latest Possible
Class Designation Pass-Through Rate Balance Maturity Date(1)
----------------- ----------------- ---------------------- ----------------
Class II-C (2) (2) December 25, 2046
Class II-F (3) (3) December 25, 2046
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group II Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for the Class II-C REMIC
A5 Regular Interest and the Class II-F REMIC A3 Regular Interest.
(2) The Class II-C REMIC A5 Regular Interest will receive 100% of amounts
received in respect of the Class II-C REMIC A3 Regular Interest.
(3) The Class II-F REMIC A5 Regular Interest will receive 100% of amounts
received in respect of the Class II-F REMIC A3 Regular Interest.
20
REMIC A6
As provided herein, the Securities Administrator will elect to treat the
segregated pool of assets consisting of the Class II-P REMIC A3 Regular Interest
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as "REMIC A6." The Class RX-A6 Interest represents the sole
class of "residual interests" in REMIC A6 for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Certificate Rate and initial Uncertificated Balance for the Class II-P REMIC A6
Regular Interest that represents a "regular interest" in REMIC A6 created
hereunder:
Initial Uncertificated Latest Possible
Class Designation Pass-Through Rate Balance Maturity Date(1)
----------------- ----------------- ---------------------- ----------------
Class II-P (2) $100.00 December 25, 2046
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Group II Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for the Class II-P REMIC
A6 Regular Interest.
(2) The Class II-P REMIC A6 Regular Interest will receive 100% of amounts
received in respect of the Class II-P REMIC A3 Regular Interest.
NOW THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
21
SUMMARY OF CERTIFICATES
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which the Classes of Certificates shall be issuable:
Initial Integral
Certificate Pass-Through Rate Pass-Through Rate Multiples in
Principal (until Optional (after Optional Minimum Excess of
Classes Balance Termination Date) Termination Date) Denomination Minimum
------- ------- ----------------- ----------------- ------------ -------
I-A-1 $371,114,000 LIBOR + 0.160%(1) LIBOR + 0.320%(1) $100,000 $1
I-A-2 $41,235,000 LIBOR + 0.210%(1) LIBOR + 0.420%(1) $100,000 $1
I-B-1 $8,204,000 LIBOR + 0.310%(1) LIBOR + 0.465%(1) $100,000 $1
I-B-2 $4,750,000 LIBOR + 0.430%(1) LIBOR + 0.645%(1) $100,000 $1
I-B-3 $2,159,000 LIBOR + 0.950%(1) LIBOR + 1.425%(1) $100,000 $1
I-B-4 $2,159,000 LIBOR + 2.150%(1) LIBOR + 3.225%(1) $100,000 $1
II-A-1 $153,898,000 LIBOR + 0.140%(1) LIBOR + 0.280%(1) $100,000 $1
II-A-2 $76,948,000 LIBOR + 0.190%(1) LIBOR + 0.380%(1) $100,000 $1
II-A-3 $25,649,000 LIBOR + 0.240%(1) LIBOR + 0.480%(1) $100,000 $1
II-B-1 $5,776,000 LIBOR + 0.300%(1) LIBOR + 0.450%(1) $100,000 $1
II-B-2 $3,438,000 LIBOR + 0.400%(1) LIBOR + 0.600%(1) $100,000 $1
II-B-3 $1,375,000 LIBOR + 0.420%(1) LIBOR + 0.630%(1) $100,000 $1
II-B-4 $2,613,000 LIBOR + 0.500%(1) LIBOR + 0.750%(1) $100,000 $1
II-B-5 $1,513,000 LIBOR + 0.600%(1) LIBOR + 0.900%(1) $100,000 $1
II-B-6 $1,375,000 LIBOR + 1.500%(1) LIBOR + 2.250%(1) $100,000 $1
I-C-1 (2) (2) (2)
I-C-2 $100 (3) (3)
II-C (2) (2) (2)
I-P $100 (4) (4)
II-P $100 (4) (4)
R $100 N/A N/A
RX $100 N/A N/A
----------------
(1) Subject to a maximum interest rate equal to the lesser of 10.50% and the
related Net Rate Cap.
(2) For federal income tax purposes, the Class I-C-1 Certificates will have an
initial Certificate Principal Balance equal to the Group I Initial
Overcollateralization Amount. The Class I-C-1 Certificates will be entitled
to 100% of the amounts received in respect of the Class I-C-1 REMIC VII
Regular Interest. For federal income tax purposes, the Class II-C
Certificates will have an initial Certificate Principal Balance equal to
the Group II Initial Overcollateralization Amount. The Class II-C
Certificates will be entitled to 100% of the amounts received in respect of
the Class II-C REMIC A5 Regular Interest and the Class II-F REMIC A5
Regular Interest.
(3) The Class I-C-2 Certificates will not have a Pass-Through Rate. The Class
I-C-2 Certificates represent beneficial interests in the Class I-C-2
Grantor Trust.
(4) The Class I-P and Class II-P Certificates will not bear interest. The Class
I-P Certificates will be entitled to 100% of the amounts received in
respect of the Class I-P REMIC VI Regular Interest, plus any Non-Mortgagor
Prepayment Premium Payment Amounts attributable to the Group I Mortgage
Loans. The Class II-P Certificates will be entitled to 100% of the amounts
received in respect of the Class II-P REMIC A6 Regular Interest, plus any
Non-Mortgagor Prepayment Premium Payment Amounts attributable to the Group
II Mortgage Loans.
22
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01 Definitions.
------------
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Section 1.01.
Accepted Master Servicing Practices: With respect to any Mortgage Loan, those
customary mortgage loan master servicing practices of prudent mortgage servicing
institutions that master service Mortgage Loans of the same type and quality as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property is
located, to the extent applicable to the Master Servicer, and in accordance with
the applicable state, local and federal laws, rules and regulations.
Accountant: A person engaged in the practice of accounting who (except when this
Agreement provides that an Accountant must be Independent) may be employed by or
affiliated with a party hereto or an Affiliate thereof.
Accrual Period: With respect to any Distribution Date and each Class of
interest-bearing Certificates (other than the Class I-C-1 and Class II-C
Certificates) and the REMIC III Regular Interests (other than the Class I-C-1
REMIC III Regular Interest) and REMIC A3 Regular Interests (other than the Class
II-C REMIC A3 Regular Interest), the period commencing on the Distribution Date
in the month immediately preceding the month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, the Closing Date) and
ending on the close of business on the calendar day immediately preceding such
Distribution Date. With respect to any Distribution Date and the Class I-C-1
Certificates, Class II-C Certificates, the Class I-C-1 REMIC III Regular
Interest, the Class II-C REMIC A3 Regular Interest, the REMIC I Regular
Interests, REMIC II Regular Interests, REMIC A1 Regular Interests and REMIC A2
Regular Interests, the one-month period ending on the last day of the calendar
month immediately preceding the month in which such Distribution Date occurs.
Additional Disclosure Notification: As defined in Section 4.05(a)(i).
Additional Form 10-D Disclosure: As defined in Section 4.05(a)(i).
Additional Form 10-K Disclosure: As defined in Section 4.05(a)(ii).
Adjustable Rate Mortgage Loans: Mortgage Loans that contain a provision pursuant
to which the mortgage rate is adjusted periodically, as identified on the
Mortgage Loan Schedule.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, the date, as
identified on the Mortgage Loan Schedule, on which the Mortgage Rate is adjusted
in accordance with the terms of the related Mortgage Note and Mortgage.
Advance: Any Monthly Advance or Servicing Advance.
Adverse REMIC Event: As defined in Section 12.01.
23
Affiliate: With respect to any specified Person, any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
Agreement: This Pooling Agreement, including all exhibits and schedules hereto,
and all amendments or supplements hereto.
Applied Realized Loss Amount: With respect to each Distribution Date and the
Group I Mortgage Loans, the excess, if any, of (a) the aggregate Certificate
Principal Balances of the Class I, Class I-P and one-half the aggregate
Certificate Principal Balance of the Class R and RX Certificates after taking
into account the distribution of the Group I Principal Distribution Amount on
such Distribution Date and any increase in the aggregate Certificate Principal
Balance of any Class of Class I Certificates as a result of Subsequent
Recoveries over (b) the aggregate Stated Principal Balance of the Group I
Mortgage Loans as of the Due Date in the month of such Distribution Date. With
respect to each Distribution Date and the Group II Mortgage Loans, the excess,
if any, of (a) the aggregate Certificate Principal Balances of the Class II and
Class II-P Certificates and one-half of the aggregate Certificate Principal
Balances of the Class R and Class RX Certificates after taking into account the
distribution of the Group II Principal Distribution Amount on such Distribution
Date and any increase in the aggregate Certificate Principal Balance of any
Class of Class II Certificates as a result of Subsequent Recoveries over (b) the
aggregate Stated Principal Balance of the Group II Mortgage Loans as of the Due
Date in the month of such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the lesser of (a) the value
set forth on the appraisal made in connection with the origination of the
related Mortgage Loan as the value of the related Mortgaged Property, or (b) the
amount paid by the Mortgagor for the Mortgaged Property, provided, however, that
in the case of a refinanced Mortgage Loan or a Mortgage Loan that was not
originated in connection with the borrower's purchase of the Mortgaged Property,
such value shall be based solely on the appraisal made in connection with the
origination of such Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
assignment of the Mortgage to the Trustee, which assignment, notice of transfer
or equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties in the same
jurisdiction, if permitted by law.
Available Funds: With respect to any Distribution Date and the Group I or Group
II Mortgage Loans, the total amount of all cash received by the Securities
Administrator from each Servicer or any other party with respect to such
Mortgage Loans and such Distribution Date, including (1) all Scheduled Monthly
Payments on the related Mortgage Loans and due during the Due Period related to
such Distribution Date (net of the related Servicing Fees, Master Servicing Fee,
LPMI Policy Fees and Triad Premiums), together with any Advances in respect
thereof, (2) all Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds
24
and Subsequent Recoveries, in each case collected by the Servicers during the
related Prepayment Period with respect to the related Mortgage Loans, (3) all
Principal Prepayments, together with any accrued interest thereon, identified as
having been received from the related Mortgage Loans during the related
Prepayment Period with respect to the related Mortgage Loans, (4) all
Compensating Interest Payments made by the Master Servicer and/or received from
the Servicers in respect of Prepayment Interest Shortfalls with respect to the
related Mortgage Loans occurring during the related Prepayment Period, (5) the
aggregate Repurchase Price paid during the related Prepayment Period with
respect to the related Mortgage Loans, (6) any Substitution Adjustment Amounts
received by the Securities Administrator during the related Prepayment Period
with respect to the related Mortgage Loans, (7) with respect to the first
Distribution Date, the related Closing Date Deposit Amount (as principal), and
(8) on the Distribution Date on which the related Mortgage Loans are purchased
pursuant to the provisions of Article XI hereof, the related Termination Price,
minus:
(A) all fees, charges and other amounts payable or reimbursable to the
Master Servicer, the Securities Administrator, the Custodian or the Trustee
under this Agreement or to the related Servicer under the applicable
Servicing Agreement, as applicable with respect to the related Mortgage
Loans;
(B) with respect to the Group I or Group II Mortgage Loans, as
applicable, the product of its Group Expense Percentage and any fees,
charges and other amounts reimbursable that are not separately allocated to
the Group I or Group II Mortgage Loans;
(C) in the case of (2), (3), (4) and (5) above, any related
unreimbursed expenses incurred by the related Servicer in connection with a
liquidation or foreclosure and any unreimbursed Advances due to the Master
Servicer or the related Servicer with respect to the related Mortgage
Loans;
(D) any related unreimbursed Non-recoverable Advances due to the
Master Servicer or the Servicers with respect to the related Mortgage
Loans; and
(E) in the case of (1) through (4) above, any related amounts
collected which are determined to be attributable to a subsequent Due
Period or Prepayment Period.
Prepayment Premiums shall not be part of Available Funds.
Back-Up Certification: As defined in Section 4.04.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended, as
codified in 11 U.S.C. xx.xx. 101-1330.
Basis Risk Shortfall Carryover Amount: With respect to any Distribution Date and
any Class of Offered Certificates, the excess of (i) the amount of interest such
Class would have accrued on such Distribution Date had the applicable
Pass-Through Rate not been subject to the related Net Rate Cap, over (ii) the
amount of interest such class of Certificates received on such Distribution Date
if the Pass-Through Rate is limited to the related Net Rate Cap, together with
the unpaid portion of any such amount from prior Distribution Dates (and accrued
25
interest thereon at the then applicable Pass-Through Rate, without giving effect
to the related Net Rate Cap). For federal income tax purposes, each reference to
a Net Rate Cap in applicable Pass-Through Rate shall be deemed to be a reference
to the Group I REMIC Cap or Group II REMIC Cap, as applicable.
Benefit Plan Affidavit: An affidavit in substantially the form attached hereto
as Exhibit G.
Book-Entry Certificates: Each Class of Certificates other than the Class C,
Class P, Class R and Class RX Certificates.
Business Day: Any day other than (a) a Saturday or a Sunday or (b) a day on
which banking institutions in the states of New York, Maryland or Minnesota, or
any other city in which the corporate trust office of the Trustee or the
principal office of the Securities Administrator is located, are authorized or
obligated by law or executive order to be closed.
Cap Account: The Eligible Account or Accounts created and maintained pursuant to
Section 8.04.
Cap Agreement: The long-form Cap Confirmation, dated as of January 25, 2007
between the Cap Provider and the Supplemental Interest Trust Trustee, the form
of which is attached hereto as Exhibit M.
Cap Payment: With respect to each Distribution Date, the "Cap Payment Amount"
(as defined in the Cap Agreement) related to such Distribution Date.
Cap Provider: The Royal Bank of Scotland plc.
Certificate: Any one of the mortgage-backed Certificates issued pursuant to this
Agreement executed by the Securities Administrator in substantially the forms
attached hereto as Exhibit X-0, Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Exhibit
A-5 and Exhibit A-6.
Certificate Owner: With respect to a Book-Entry Certificate, the Person who is
the beneficial owner of a Book-Entry Certificate. With respect to any Definitive
Certificate, the Certificateholder of such Certificate.
Certificate Principal Balance: With respect to any Class of Certificates, other
than the Class C Certificates, and any Distribution Date, the maximum dollar
amount of principal to which the Holder thereof is then entitled hereunder, such
amount being equal to the initial principal balance of such Class of
Certificates as of the Closing Date, plus any Subsequent Recoveries added to the
Certificate Principal Balance of such Certificate, and, with respect to the
Class II Certificates, any related Group II Allocated Net Deferred Interest
allocated thereto on such Distribution Date and on any previous Distribution
Date minus the sum of (a) all distributions of principal previously made with
respect that Class of Certificates and (b) all Realized Losses previously
allocated to that Class of Certificates. Solely for federal income tax purposes,
with respect to the Class I-C-1 Certificates, the Uncertificated Balance of the
Class I-C-1 REMIC VI Regular Interest, and with respect to the Class II-C
Certificates, the Uncertificated Balance of the Class II-C REMIC A5 Regular
Interest. For purposes of Article VIII hereof, unless specifically provided to
the contrary, the Certificate Principal Balance shall be determined as of the
26
close of business of the immediately preceding Distribution Date, after giving
effect to all distributions made on such Distribution Date.
Certificateholder or Holder: With respect to a Book-Entry Certificate, the
beneficial owner of such Book-Entry Certificate, and with respect to a
Definitive Certificate, the Holder of such Definitive Certificate and in whose
name a Certificate is registered in the Certificate Register.
Certificate Registrar: The Person appointed to maintain the Certificate
Register, which initially shall be the Securities Administrator.
Certificate Register: The register maintained pursuant to Section 9.02.
Certification Parties: As defined in Section 4.04.
Certifying Person: As defined in Section 4.04.
Class: All Certificates bearing the same class designation as set forth in the
Preliminary Statement. In the case of the REMIC Regular Interests, the term
"Class" refers to such REMIC Regular Interests having the same designation as
set forth in the Preliminary Statement.
Class I Certificates: The Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1, Class I-A and Class I-B Certificates.
Class I-A Certificates: The Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1, Class I-A-1 and Class I-A-2 Certificates having
initial Certificate Principal Balances and Pass-Through Rates as set forth
herein and representing (i) a Regular Interest in REMIC III, (ii) the right to
receive amounts in respect of its Basis Risk Shortfall Carryover Amounts and
(iii) the obligation to pay the related Class IO Distribution Amount.
Class I-A Principal Distribution Amount: For any Distribution Date on or after
the Group I Stepdown Date as long as a Group I Trigger Event has not occurred
with respect to such Distribution Date, an amount equal to the lesser of (A) the
aggregate Group I Principal Distribution Amount for such Distribution Date and
(B) the excess (if any) of (x) the aggregate Certificate Principal Balance of
the Class I-A Certificates immediately prior to such Distribution Date over (y)
the lesser of (a) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period, and after reduction for Group I Realized Losses
incurred during the related Prepayment Period) multiplied by (i) 91.00% and (b)
the amount, if any, by which (i) the aggregate Stated Principal Balance of the
Group I Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Group I Realized Losses incurred during the related Prepayment Period) exceeds
(ii) 0.50% of the Cut-off Date Stated Principal Balance of the Group I Mortgage
Loans.
27
Class I-B Certificates: The Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1, Class I-B-1, Class I-B-2, Class I-B-3 and Class
I-B-4 Certificates having initial Certificate Principal Balances and
Pass-Through Rates as set forth herein and representing (i) a Regular Interest
in REMIC III with respect to the Class I-B-1, Class I-B-2 and Class I-B-3
Certificates, and a Regular Interest in REMIC IV with respect to the Class I-B-4
Certificates, (ii) the right to receive amounts in respect of its related Basis
Risk Shortfall Cap Carryover Amount and (iii) the obligation to pay the related
Class IO Distribution Amount.
Class I-B-1 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group I Stepdown Date as long as a Group I Trigger Event has not
occurred with respect to such Distribution Date, an amount equal to the excess
(if any) of (x) the sum of (i) the aggregate Certificate Principal Balance of
the Class I-A Certificates (after taking into account the distribution of the
Class I-A Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class I-B-1 Certificates immediately prior
to such Distribution Date over (y) the lesser of (a) the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) multiplied by 94.80% and (b) the amount, if any, by which (i)
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) 0.50% of the Cut-off Date Balance of the Group I
Mortgage Loans.
Class I-B-2 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group I Stepdown Date as long as a Group I Trigger Event has not
occurred with respect to such Distribution Date, an amount equal to the excess
(if any) of (x) the sum of (i) the aggregate Certificate Principal Balance of
the Class I-A and Class I-B-1 Certificates (after taking into account the
distribution of the Class I-A and Class I-B-1 Principal Distribution Amounts on
such Distribution Date) and (ii) the Certificate Principal Balance of the Class
I-B-2 Certificates immediately prior to such Distribution Date over (y) the
lesser of (a) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period, and after reduction for Realized Losses incurred
during the related Prepayment Period) multiplied by 97.00% and (b) the amount,
if any, by which (i) the aggregate Stated Principal Balance of the Group I
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the related Prepayment Period) exceeds (ii) 0.50% of the Cut-off
Date Balance of the Group I Mortgage Loans.
Class I-B-3 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group I Stepdown Date as long as a Group I Trigger Event has not
occurred with respect to such Distribution Date, an amount equal to the excess
28
(if any) of (x) the sum of (i) the aggregate Certificate Principal Balance of
the Class I-A, Class I-B-1 and Class I-B-2 Certificates (after taking into
account the distribution of the Class I-A, Class I-B-1 and Class I-B-2 Principal
Distribution Amounts on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class I-B-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Prepayment
Period) multiplied by 98.00% and (b) the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) 0.50% of the Cut-off Date Balance of the Group I
Mortgage Loans.
Class I-B-4 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group I Stepdown Date as long as a Group I Trigger Event has not
occurred with respect to such Distribution Date, an amount equal to the excess
(if any) of (x) the sum of (i) the aggregate Certificate Principal Balance of
the Class I-A, Class I-B-1, Class I-B-2 and Class I-B-3 Certificates (after
taking into account the distribution of the Class I-A, Class I-B-1, Class I-B-2
and Class I-B-3 Principal Distribution Amounts on such Distribution Date) and
(ii) the Certificate Principal Balance of the Class I-B-4 Certificates
immediately prior to such Distribution Date over (y) the lesser of (a) the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) multiplied by 99.00% and (b) the amount, if any, by which (i)
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) 0.50% of the Cut-off Date Balance of the Group I
Mortgage Loans.
Class I-B-4 REMIC IV Regular Interest: A separate uncertificated beneficial
ownership interest in REMIC IV issued hereunder as designated in the Preliminary
Statement, designated as a Regular Interest in REMIC IV and entitled to
distributions as set forth herein.
Class I-C Certificates: The Class I-C-1 and Class I-C-2 Certificates.
Class I-C-1 Certificates: The Luminent Mortgage Trust 2007-1 Mortgage
Pass-Through Certificates, Series 2007-1, Class I-C-1 Certificates having an
initial Notional Amount and Uncertificated Balance and associated Pass-Through
Rate as set forth herein and representing (i) a Regular Interest in REMIC V, and
(ii) the obligation to pay the Basis Risk Shortfall Carryover Amounts with
respect to the Class I Certificates to the Class I-C-2 Certificates.
29
Class I-C-1 Distributable Amount: With respect to any Distribution Date, the sum
of (i) the interest accrued on such Class I-C-1 REMIC III Regular Interest at
its Pass-Through Rate calculated on its Notional Amount (and any amounts in
respect of such amounts remaining unpaid from prior Distribution Dates) less the
amount (without duplication) of Basis Risk Shortfall Carryover Amounts paid
pursuant to Section 8.05(c)(iv) and the amount of any Swap Termination Payments
paid pursuant to Section 8.05(c)(v) and (ii) subject to distributions in respect
of Section 8.05(c)(i)-(v), any remaining Group I Overcollateralization Release
Amounts.
Class I-C-1 REMIC V Regular Interest: A separate uncertificated beneficial
ownership interest in REMIC V issued hereunder as designated in the Preliminary
Statement, designated as a Regular Interest in REMIC V and entitled to
distributions as set forth herein.
Class I-C-2 Certificates: The Luminent Mortgage Trust 2007-1 Mortgage
Pass-Through Certificates, Series 2007-1, Class I-C-2 Certificates are grantor
trust Certificates representing (i) the obligation to pay Basis Risk Shortfall
Carryover Amounts with respect to the Class I Certificates and the Class IO
Distribution Amounts, and (ii) the right to receive the Class IO Distribution
Amount and amounts from the Class I Reserve Account, the Swap Account and the
Cap Account as set forth herein.
Class I-C-2 Grantor Trust: That portion of the Trust exclusive of the REMICs
consisting of any interests in the Class I Reserve Account and the Supplemental
Interest Trust beneficially owned by the holders of the Class I-C-2 Certificates
and rights and obligations with respect thereto.
Class I-P Certificates: The Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1, Class I-P Certificates representing (i) a Regular
Interest in REMIC VI and (ii) the right to receive Non-Mortgagor Prepayment
Premium Payment Amounts with respect to the Group I Mortgage Loans.
Class I-P REMIC VI Regular Interest: A separate uncertificated beneficial
ownership interest in REMIC VI issued hereunder as designated in the Preliminary
Statement, designated as a Regular Interest in REMIC VI and entitled to
distributions as set forth herein.
Class I-Swap-IO REMIC VII Regular Interest: A separate uncertificated beneficial
ownership interest in REMIC VII issued hereunder as designated in the
Preliminary Statement, designated as a Regular Interest in REMIC VII and
entitled to distributions as set forth herein.
Class II Certificates: The Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1, Class II-A and Class II-B Certificates.
Class II-A Certificates: The Luminent Mortgage Trust 2007-1 Mortgage
Pass-Through Certificates, Series 2007-1, Class II-A-1, Class II-A-2 and Class
II-A-3 Certificates having initial Certificate Principal Balances and
Pass-Through Rates as set forth herein and (i) representing a Regular Interest
in REMIC A3 and (ii) the right to receive amounts in respect of its related
Basis Risk Shortfall Carryover Amount.
Class II-A Principal Distribution Amount: For any Distribution Date on or after
the Group II Stepdown Date as long as a Group II Trigger Event has not occurred
wit respect to such Distribution Date, an amount equal to the lesser of (A) the
aggregate Group II Principal Distribution Amount for such Distribution Date and
30
(B) the excess (if any) of (x) the aggregate Certificate Principal Balance of
the Class II-A Certificates immediately prior to such Distribution Date over (y)
the lesser of (a) the aggregate Stated Principal Balance of the Group II
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Group II Realized
Losses incurred during the related Prepayment Period) multiplied by (A) prior to
the Distribution date in February 2013, 83.125% and (B) on or after the
Distribution Date in February 2013, 86.50% and (b) the amount, if any, by which
(i) the aggregate Stated Principal Balance of the Group II Mortgage Loans as of
the last day of the related Due Period (after giving effect to schedule payments
of principal due during the related Due Period to the extent received or
advanced, and unscheduled collections of principal received during the related
Prepayment Period, and after reduction for Group II Realized Losses incurred
during the related Prepayment Period) exceeds (ii) the sum of 0.50% of the
Cut-off Date Balance of the Group II Mortgage Loans and any Negative
Amortization.
Class II-B Certificates: The Luminent Mortgage Trust 2007-1 Mortgage
Pass-Through Certificates, Series 2007-1, Class II-B-1, Class II-B-2, Class
II-B-3, Class II-B-4, Class II-B-5 and Class II-B-6 Certificates having initial
Certificate Principal Balances and Pass-Through Rates as set forth herein and
representing (i) a Regular Interest in REMIC A3 with respect to the Class
II-B-1, Class II- B-2, Class II-B-3, Class II-B-4 and Class II-B-5 Certificates
and a Regular Interest in REMIC A4 with respect to the Class II-B-6 Certificates
and (ii) the right to receive amounts in respect of its related Basis Risk
Shortfall Carryover Amount.
Class II-B-1 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group II Stepdown Date as long as a Group II Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class II-A Certificates (after taking into account the
distribution of the Class II-A Principal Distribution Amounts on such
Distribution Date) and (ii) the Certificate Principal Balance of the Class
II-B-1 Certificates immediately prior to such Distribution Date over (y) the
lesser of (a) the aggregate Stated Principal Balance of the Group II Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period, and after reduction for Realized Losses incurred
during the related Prepayment Period) multiplied by (A) prior to the
Distribution Date in February 2013, 88.375% and (B) on or after the Distribution
Date in February 2013, 90.70% and (b) the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Group II Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) the sum of 0.50% of the Cut-off Date Balance of
the Group II Mortgage Loans and any Negative Amortization.
Class II-B-2 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group II Stepdown Date as long as a Group II Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
31
Balance of the Class II-A and Class II-B-1 Certificates (after taking into
account the distribution of the Class II-A and Class B-1 Principal Distribution
Amounts on such Distribution Date) and (ii) the Certificate Principal Balance of
the Class II-B-2 Certificates immediately prior to such Distribution Date over
(y) the lesser of (a) the aggregate Stated Principal Balance of the Group II
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the related Prepayment Period) multiplied by (A) prior to the
Distribution Date in February 2013, 91.50% and (B) on or after the Distribution
Date in February 2013, 93.20% and (b) the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Group II Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) the sum of 0.50% of the Cut-off Date Balance of
the Group II Mortgage Loans and any Negative Amortization.
Class II-B-3 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group II Stepdown Date as long as a Group II Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class II-A, Class II-B-1 and Class II-B-2 Certificates (after
taking into account the distribution of the Class II-A, Class II-B-1 and Class
II-B-2 Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class II-B-3 Certificates immediately prior
to such Distribution Date over (y) the lesser of (a) the aggregate Stated
Principal Balance of the Group II Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) multiplied by (A) prior to the Distribution Date in February
2013, 92.75% and (B) on or after the Distribution Date in February 2013, 94.20%
and (b) the amount, if any, by which (i) the aggregate Stated Principal Balance
of the Group II Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) exceeds (ii) the
sum of 0.50% of the Cut-off Date Balance of the Group II Mortgage Loans and any
Negative Amortization.
Class II-B-4 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group II Stepdown Date as long as a Group II Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class II-A, Class II-B-1, Class II-B-2 and Class II-B-3
Certificates (after taking into account the distribution of the Class II-A,
Class II-B-1, Class II-B-2 and Class II-B-3 Principal Distribution Amounts on
such Distribution Date) and (ii) the Certificate Principal Balance of the Class
II-B-4 Certificates immediately prior to such Distribution Date over (y) the
lesser of (a) the aggregate Stated Principal Balance of the Group II Mortgage
Loans as of the last day of the related Due Period (after giving effect to
32
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period, and after reduction for Realized Losses incurred
during the related Prepayment Period) multiplied by (A) prior to the
Distribution Date in February 2013, 95.125% and (B) on or after the Distribution
Date in February 2013, 96.10% and (b) the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Group II Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) the sum of 0.50% of the Cut-off Date Balance of
the Group II Mortgage Loans and any Negative Amortization.
Class II-B-5 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group II Stepdown Date as long as a Group II Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class II-A, Class II-B-1, Class II-B-2, Class II-B-3 and Class
II-B-4 Certificates (after taking into account the distribution of the Class
II-A, Class II-B-1, Class II-B-2, Class II-B-3 and Class II-B-4 Principal
Distribution Amounts on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class II-B-5 Certificates immediately prior to such
Distribution Date over (y) the lesser of (a) the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Prepayment
Period) multiplied by (A) prior to the Distribution Date in February 2013,
96.50% and (ii) on or after the Distribution Date in February 2013, 97.20% and
(B) the amount, if any, by which (i) the aggregate Stated Principal Balance of
the Group II Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) exceeds (ii) the
sum of 0.50% of the Cut-off Date Balance of the Group II Mortgage Loans and any
Negative Amortization.
Class II-B-6 Principal Distribution Amount: For any applicable Distribution Date
on or after the Group II Stepdown Date as long as a Group II Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class II-A, Class II-B-1, Class II-B-2, Class II-B-3, Class
II-B-4 and Class II-B-5 Certificates (after taking into account the distribution
of the Class II-A, Class II-B-1, Class II-B-2, Class II-B-3, Class II-B-4 and
Class II-B-5 Principal Distribution Amounts on such Distribution Date) and (ii)
the Certificate Principal Balance of the Class II-B-6 Certificates immediately
prior to such Distribution Date over (y) the lesser of (a) the aggregate Stated
Principal Balance of the Group II Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) multiplied by (A) prior to the Distribution Date in February
2013, 97.75% and (ii) on or after the Distribution Date in February 2013, 98.20%
33
and (B) the amount, if any, by which (i) the aggregate Stated Principal Balance
of the Group II Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) exceeds (ii) the
sum of 0.50% of the Cut-off Date Balance of the Group II Mortgage Loans and any
Negative Amortization.
Class II-B-6 REMIC A4 Regular Interest: A separate uncertificated beneficial
ownership interest in REMIC A4 issued hereunder as designated in the Preliminary
Statement, designated as a Regular Interest in REMIC A4 and entitled to
distributions as set forth herein.
Class II-C Certificates: The Luminent Mortgage Trust 2007-1 Mortgage
Pass-Through Certificates, Series 2007-1, Class II-C Certificates having an
initial Notional Amount and Uncertificated Balance and associated Pass-Through
Rate as set forth herein and representing (i) a Regular Interest in REMIC A5,
(ii) the obligation to pay the Basis Risk Shortfall Carryover Amounts with
respect to the Class II Certificates, and (iii) the right to receive amounts
remaining in the Final Maturity Reserve Account in accordance with Section 8.09.
Class II-C Grantor Trust: That portion of the Trust exclusive of the REMICs
consisting of any interests in the Class II Reserve Account beneficially owned
by the holders of the Class II-C Certificates and rights and obligations with
respect thereto.
Class II-C Distributable Amount: With respect to any Distribution Date, the sum
of (i) the interest accrued on the Class II-C REMIC A3 Regular Interest at its
Pass-Through Rate calculated on its Notional Amount (and any amounts in respect
of such amounts remaining unpaid from prior Distribution Dates) plus the
interest accrued on the Class II-F REMIC A3 Regular Interest at its Pass-Through
Rate calculated on its Uncertificated Balance less the amount (without
duplication) of Basis Risk Shortfall Carryover Amounts paid pursuant to Section
8.05(g)(iv) and the Final Maturity Reserve Amount, if any, paid pursuant to
Section 8.05(e)(i), (ii) subject to distributions in respect of Section
8.05(g)(i)-(iv), any remaining Group II Overcollateralization Release Amounts,
(iii) the aggregate of amounts remaining in the Reserve Account for Class II
after the distributions in Section 8.05(g)(iv), as specified in Section
8.02(c)(viii) and (iv) the aggregate of amounts remaining in the Final Maturity
Reserve Account after the distributions in Section 8.09(d).
Class II-C REMIC A5 Regular Interest: A separate uncertificated beneficial
ownership interest in REMIC A5 issued hereunder as designated in the Preliminary
Statement, designated as a Regular Interest in REMIC A5 and entitled to
distributions as set forth herein.
Class II-F REMIC A5 Regular Interest: A separate uncertificated beneficial
ownership interest in REMIC A5 issued hereunder as designated in the Preliminary
Statement, designated as a Regular Interest in REMIC A5 and entitled to
distributions as set forth herein.
Class II-P Certificates: The Luminent Mortgage Trust 2007-1 Mortgage
Pass-Through Certificates, Series 2007-1, Class II-P Certificates representing
(i) a Regular Interest in REMIC A6 and (ii) the right to receive Non-Mortgagor
Prepayment Premium Payment Amounts with respect to the Group II Mortgage Loans.
34
Class II-P REMIC A6 Regular Interest: A separate uncertificated beneficial
ownership interest in REMIC A6 issued hereunder as designated in the Preliminary
Statement, designated as a Regular Interest in REMIC A6 and entitled to
distributions as set forth herein.
Class C Certificates: The Class I-C and Class II-C Certificates.
Class IO Distribution Amount: As defined in Section 8.04 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal
the amount payable to the Supplemental Interest Trust on such Distribution Date
in excess of the amount payable on the Class I-Swap-IO REMIC VII Regular
Interest on such Distribution Date, all as further provided in Section 8.04
hereof.
Class P Certificates: Class I-P and Class II-P Certificates.
Class R Certificates: The Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1, Class R Certificates representing the Residual
Interest in each of REMIC I, REMIC II, REMIC III, REMIC A1, REMIC A2 and REMIC
A3.
Class R-I Interest: The uncertificated Residual Interest in REMIC I.
Class R-II Interest: The uncertificated Residual Interest in REMIC II.
Class R-III Interest: The uncertificated Residual Interest in REMIC III.
Class R-A1 Interest: The uncertificated Residual Interest in REMIC A1.
Class R-A2 Interest: The uncertificated Residual Interest in REMIC A2.
Class R-A3 Interest: The uncertificated Residual Interest in REMIC A3.
Class RX Certificates: The Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1, Class RX Certificates representing the Residual
Interest in each of REMIC IV, REMIC V, REMIC VI, REMIC VII, REMIC A4, REMIC A5
and REMIC A6.
Class RX-IV Interest: The uncertificated Residual Interest in REMIC IV.
Class RX-V Interest: The uncertificated Residual Interest in REMIC V.
Class RX-VI Interest: The uncertificated Residual Interest in REMIC VI.
Class RX-VII Interest: The uncertificated Residual Interest in REMIC VII.
Class RX-A4 Interest: The uncertificated Residual Interest in REMIC A4.
Class RX-A5 Interest: The uncertificated Residual Interest in REMIC A5.
Class RX-A6 Interest: The uncertificated Residual Interest in REMIC A6.
35
Clean-up Call: The purchase of the Group I or Group II Mortgage Loans pursuant
to Section 11.01.
Closing Date: January 25, 2007.
Closing Date Deposit Amount: With respect to the Group I Mortgage Loans, $0.
With respect to the Group II Mortgage Loans, $0.
Code: The Internal Revenue Code of 1986, as it may be amended from time to time,
or any successor statutes thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
Commission: The Securities and Exchange Commission.
Compensating Interest Payment: With respect to any Distribution Date and any
Servicer, an amount equal to the least of (a) the aggregate Prepayment Interest
Shortfall for such Distribution Date with respect to the Mortgage Loans serviced
by such Servicer, (b) the amount of the Servicing Fee actually paid to, or
retained by, such Servicer in respect of such Distribution Date, and (c) such
other amount as may be specified in the related Servicing Agreement.
Condemnation Proceeds: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise of the
power of eminent domain or condemnation, to the extent not required to be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents.
Control: The meaning specified in Section 8-106 of the UCC.
Corporate Trust Office: With respect to:
(a) the Securities Administrator, the principal corporate trust office at
which, at any particular time, its corporate trust business in connection with
this Agreement shall be administered, which office, at the date of the execution
of this Agreement, is located at Xxxxx Xxxxx Xxxx, X.X., X.X. Xxx 00, Xxxxxxxx,
Xxxxxxxx 00000, (or for overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000) Attention: Corporate Trust Services-Client Manager Luminent
2007-1, or at such other address as the Securities Administrator may designate
from time to time by notice to Certificateholders, the Trustee, the Depositor,
the Seller, the Master Servicer and the Servicer; provided, however, that with
respect to the Securities Administrator and presentment of the Certificates for
registration of transfer, exchange or final payment: Xxxxx Fargo Bank, N.A.,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust Services-Client Manager Luminent 2007-1; and
(b) the Trustee, the principal office of the Trustee at which at any
particular time its corporate trust business in connection with this Agreement
shall be administered, which office at the date of execution of this Agreement
is located at HSBC Bank USA, National Association, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Trust & Loan Agency/Luminent 2007-1, or at
such other address as the Trustee may designate from time to time by notice to
the Certificateholders, the Securities Administrator, the Depositor, the Seller
and the Master Servicer.
36
Corresponding Class: The following chart illustrates the Corresponding Classes
of REMIC II Regular Interests, REMIC III Regular Interests and Class I
Certificates:
--------------------------------------------------------------------------------
Corresponding Corresponding Corresponding
REMIC II Regular Interest REMIC III Regular Interest Class of Certificates
--------------------------------------------------------------------------------
I-LTA-1 Class I-A-1 I-A-1 Certificates
--------------------------------------------------------------------------------
I-LTA-2 Class I-A-2 I-A-2 Certificates
--------------------------------------------------------------------------------
I-LTB-1 Class I-B-1 I-B-1 Certificates
--------------------------------------------------------------------------------
I-LTB-2 Class I-B-2 I-B-2 Certificates
--------------------------------------------------------------------------------
I-LTB-3 Class I-B-3 I-B-3 Certificates
--------------------------------------------------------------------------------
I-LTB-4 Class I-B-4 I-B-4 Certificates
--------------------------------------------------------------------------------
N/A Class I-C-1 Class I-C-1 Certificates
--------------------------------------------------------------------------------
I-LTP Class I-P Class I-P Certificates
--------------------------------------------------------------------------------
I-LTIO Class I-Swap-IO N/A
--------------------------------------------------------------------------------
The following chart illustrates the Corresponding Classes of REMIC A2
Regular Interests, REMIC A3 Regular Interests and Class II Certificates:
--------------------------------------------------------------------------------
Corresponding Corresponding Corresponding
REMIC A2 Regular Interest REMIC A3 Regular Interest Class of Certificates
--------------------------------------------------------------------------------
II-LTA-1 Class II-A-1 Class II-A-1 Certificates
--------------------------------------------------------------------------------
II-LTA-2 Class II-A-2 Class II-A-2 Certificates
--------------------------------------------------------------------------------
II-LTA-3 Class II-A-3 Class II-A-3 Certificates
--------------------------------------------------------------------------------
II-LTB-1 Class II-B-1 Class II-B-1 Certificates
--------------------------------------------------------------------------------
II-LTB-2 Class II-B-2 Class II-B-2 Certificates
--------------------------------------------------------------------------------
II-LTB-3 Class II-B-3 Class II-B-3 Certificates
--------------------------------------------------------------------------------
II-LTB-4 Class II-B-4 Class II-B-4 Certificates
--------------------------------------------------------------------------------
II-LTB-5 Class II-B-5 Class II-B-5 Certificates
--------------------------------------------------------------------------------
II-LTB-6 Class II-B-6 Class II-B-6 Certificates
--------------------------------------------------------------------------------
N/A Class II-C Class II-C Certificates
--------------------------------------------------------------------------------
II-LTF Class II-F Class II-C Certificates
--------------------------------------------------------------------------------
II-LTP Class II-P Class II-P Certificates
--------------------------------------------------------------------------------
Corresponding REMIC II Marker Interests: REMIC II Regular Interest I-LTA-1,
REMIC II Regular Interest I-LTA-2, REMIC II Regular Interest I-LTB-1, REMIC II
Regular Interest I-LTB-2, REMIC II Regular Interest I-LTB-3 and REMIC II Regular
Interest I-LTB-4.
Corresponding REMIC A2 Marker Interests: REMIC A2 Regular Interest II-LTA-1,
REMIC A2 Regular Interest II-LTA-2, REMIC A2 Regular Interest II-LTA-3, REMIC A2
Regular Interest II-LTB-1, REMIC A2 Regular Interest II-LTB-2, REMIC A2 Regular
Interest II-LTB-3, REMIC A2 Regular Interest II-LTB-4, REMIC A2 Regular Interest
II-LTB-5 and REMIC A2 Regular Interest II-LTB-6.
Credit Enhancement Percentage: For any Distribution Date and any Class of
Certificates, the percentage equivalent of a fraction the numerator of which is
equal to the aggregate Certificate Principal Balances of all Classes of Class I
or Class II Certificates that are subordinate to such Class of Certificates and
37
the denominator of which is equal to the aggregate Stated Principal Balances of
the related Group of Mortgage Loans as of the Due Date of the related Due
Period.
Cumulative Realized Losses: The aggregate Realized Losses incurred in respect of
Liquidated Group I or Group II Mortgage Loans, as applicable, since the Cut-off
Date.
Cumulative Realized Loss Percentage: With respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the aggregate
amount of Cumulative Realized Losses incurred on the Group I or Group II
Mortgage Loans from the Cut-off Date through the last day of the related Due
Period and the denominator of which is the aggregate Cut-off Date Balance of the
Group I or Group II Mortgage Loans, as applicable.
Custodial Account: The separate account or accounts established and maintained
pursuant to each Servicing Agreement for the deposit of Scheduled Monthly
Payments and other principal and interest collections on the Mortgage Loans.
Custodial Agreement: The Custodial Agreement, dated as of January 1, 2007, by
and between the Trustee and the Custodian, as amended or modified from time to
time.
Custodian: Xxxxx Fargo Bank, N.A., or its successor in interest or assigns in
its capacity as custodian under the Custodial Agreement
Cut-off Date: January 1, 2007.
Cut-off Date Balance: The aggregate Stated Principal Balance of the Group I or
Group II Mortgage Loans, as applicable, as of the close of business on the
Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction in the
Scheduled Monthly Payment that the related Mortgagor is obligated to pay on any
Due Date as a result of any proceeding under bankruptcy law or any similar
proceeding.
Deferred Interest: The amount of accrued interest on a Group II Mortgage Loan,
the payment of which is deferred and added to the principal balance of such
Mortgage Loan due to the negative amortization feature.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a court
of competent jurisdiction of the Mortgaged Property in an amount less than the
then-outstanding indebtedness under the Mortgage Loan, or any reduction in the
amount of principal to be paid in connection with any Scheduled Monthly Payment
that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a physical certificate and
any Certificate issued in lieu of a Book-Entry Certificate pursuant to Section
9.02(e).
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the Trust Fund
or as to which one or more Qualified Substitute Mortgage Loans are substituted
therefor.
38
Delinquency Rate: For any Due Period, the fraction, expressed as a percentage,
the numerator of which is the aggregate Stated Principal Balance of the Group I
or Group II Mortgage Loans that are 60 or more days Delinquent (including all
Mortgage Loans in foreclosure, all REO Properties and all Mortgage Loans for
which the Mortgagor has filed for bankruptcy after the Closing Date) as of the
close of business on the last day of the preceding calendar month, and the
denominator of which is the aggregate Stated Principal Balance of the Group I or
Group II Mortgage Loans, as applicable, as of the close of business on the last
day of such calendar month.
Delinquent: Any Mortgage Loan with respect to which a Scheduled Monthly Payment
would be "delinquent" as determined in accordance with the Mortgage Bankers
Association determination of a delinquent mortgage loan.
Depositor: Xxxxx Asset Securitization, Inc., a Delaware corporation, or its
successors in interest.
Depository: The initial Depository shall be The Depository Trust Company, the
nominee of which is Cede & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the UCC of the State of New York and
registered as a "clearing agency" pursuant to Section 17A of the Exchange Act as
amended.
Determination Date: With respect to any Distribution Date and Servicer, the
Business Day preceding the related Servicer Remittance Date or as otherwise
specified in the related Servicing Agreement.
Disqualified Organization: (a) The United States, any State or political
subdivision thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing; (b) any organization
(other than a xxxxxx'x cooperative as defined in Section 521 of the Code) that
is exempt from federal income taxation (including taxation under the unrelated
business taxable income provisions of the Code); (c) any rural telephone or
electrical service cooperative described in Section 1381(a)(2)(C) of the Code;
(d) any foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of a U.S. Person; (e) any "electing large
partnership"; or (f) any other entity so designated by Treasury rulings or
regulations promulgated or otherwise in effect as of the date hereof. In
addition, a corporation will not be treated as an instrumentality of the United
States or of any state or political subdivision thereof if all of its activities
are subject to tax and, with the exception of Xxxxxxx Mac, a majority of its
board of directors is not selected by such governmental unit.
Distribution Account: The separate account established and maintained pursuant
to Section 8.01.
Distribution Date: The 25th day of each calendar month or if the 25th day is not
a Business Day, the next succeeding Business Day, commencing in February 2007.
Distribution Date Report: As defined in Section 4.06.
Due Date: The day of the month on which the Scheduled Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace, as specified in the related
Mortgage Note.
39
Due Period: With respect to any Distribution Date and a Mortgage Loan, the
period commencing on the second day of the month immediately preceding the month
in which such Distribution Date occurs (or the day following the Cut-off Date in
respect of the first Due Period) and ending at the close of business on the
first day of the calendar month in which such Distribution Date occurs.
XXXXX: The "Electronic Data Gathering, Analysis, and Retrieval" system of the
Commission, which performs automated collection, validation, indexing,
acceptance, and forwarding of submissions by companies and others who are
required by law to file forms with the Commission.
Eligible Account: Any of
(a) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated in the highest
short term rating category of each Rating Agency at the time any amounts are
held on deposit therein;
(b) an account or accounts the deposits in which are fully insured by the
FDIC (to the limits established by it), the uninsured deposits in which account
are otherwise secured such that, as evidenced by an Opinion of Counsel delivered
to the Securities Administrator, the Trustee and each Rating Agency, the Trustee
on behalf of the Certificateholders will have a claim with respect to the funds
in the account or a perfected first priority security interest against the
collateral (which shall be limited to Permitted Investments) securing those
funds that is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained and which uninsured
deposits shall not cause any Rating Agency to reduce its then-current rating on
any Certificate, as evidenced by a rating confirmation from each such Rating
Agency;
(c) a trust account or accounts maintained with the trust department of a
federal or state chartered depository institution, national banking association
or trust company acting in its fiduciary capacity; or
(d) an account otherwise acceptable to each Rating Agency without reduction
or withdrawal of its then current ratings of the Certificates as evidenced by a
letter from such Rating Agency to the Securities Administrator and the Trustee.
Eligible Accounts may bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificates: (i) Any of the Class R, Class RX, Class C or
Class P Certificates, (ii) any of the Class II Certificates that is subordinated
to any other Class of Class II Certificates or (iii) any of the Class I
Certificates or Class II-A-1 Certificates that no longer has the applicable
credit rating required by the Underwriter's Exemption.
40
Errors and Omissions Insurance Policy: An errors and omissions insurance policy
to be maintained by each Servicer pursuant to the applicable Servicing Agreement
or by the Master Servicer pursuant to Section 5.03.
Escrow Account: The separate account or accounts created and maintained by each
Servicer pursuant to each Servicing Agreement for the deposit of taxes and
insurance collections on the Mortgage Loans.
Escrow Payments: With respect to any Mortgage Loan, the amounts constituting
ground rents, taxes, assessments, water rates, sewer rents, municipal charges,
fire and hazard insurance premiums, condominium charges, and any other payments
required to be escrowed by the Mortgagor with the mortgagee pursuant to the
Mortgage or any other related document.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
Xxxxxx Mae: Xxxxxx Xxx, a federally chartered and privately owned corporation
organized and existing under the Federal National Mortgage Association Charter
Act, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FICO: The credit score used for underwriting a Mortgage Loan.
Fidelity Bond: A fidelity bond to be maintained by each Servicer pursuant to the
applicable Servicing Agreement or by the Master Servicer pursuant to Section
5.03.
Final Certification: A certification as to the completeness of each Mortgage
File provided by the Custodian within 180 days following the Closing Date in
accordance with the Custodial Agreement.
Final Maturity Reserve Account: A trust account established by the Final
Maturity Reserve Trustee pursuant to Section 8.09 for the deposit of the Final
Maturity Reserve Amount to be used to pay the Class II Certificates at maturity.
Final Maturity Reserve Amount: With respect to each Distribution Date beginning
with the Distribution Date in February 2017, an amount equal to the product of
(i) the Final Maturity Reserve Rate, (ii) the aggregate Stated Principal Balance
of the Group II Mortgage Loans as of the first day of the related Due Period,
and (iii) one-twelfth. The Final Maturity Reserve Amount will be zero on any
applicable Distribution Date on which the aggregate Stated Principal Balance of
the Group II Mortgage Loans is less than or equal to the amount shown for such
Distribution Date in the Final Maturity Reserve Schedule.
Final Maturity Reserve Rate: A per annum rate equal to the product of 1.00%
multiplied by the quotient of (a) the aggregate Stated Principal Balance of the
Group II Mortgage Loans with original terms to maturity in excess of 30 years as
of the first day of the related Due Period divided by (b) the aggregate Stated
Principal Balance of the Group II Mortgage Loans as of the first day of the
related Due Period.
41
Final Maturity Reserve Schedule:
--------------------------------
Aggregate Aggregate Aggregate
Principal Principal Principal
Period Balance ($) Period Balance ($) Period Balance ($)
------ ----------- ------ ----------- ------ -----------
121 23,280,169.14 162 12,441,171.68 203 6,571,524.59
122 22,929,598.95 163 12,250,902.75 204 6,468,817.67
123 22,584,197.39 164 12,063,460.23 205 6,367,652.19
124 22,243,889.05 165 11,878,802.73 206 6,268,005.48
125 21,908,599.62 166 11,696,889.48 207 6,169,855.17
126 21,578,255.88 167 11,517,680.26 208 6,073,179.24
127 21,252,785.66 168 11,341,135.48 209 5,977,955.96
128 20,932,117.84 169 11,167,216.09 210 5,884,163.95
129 20,616,182.34 170 10,995,883.64 211 5,791,782.12
130 20,304,910.07 171 10,827,100.21 212 5,700,789.70
131 19,998,232.98 172 10,660,828.44 213 5,611,166.22
132 19,696,083.98 173 10,497,031.53 214 5,522,891.51
133 19,398,396.98 174 10,335,673.19 215 5,435,945.67
134 19,105,106.81 175 10,176,717.68 216 5,350,309.13
135 18,816,149.28 176 10,020,129.77 217 5,265,962.58
136 18,531,461.12 177 9,865,874.73 218 5,182,887.00
137 18,250,979.99 178 9,713,918.36 219 5,101,063.65
138 17,974,644.42 179 9,564,226.94 220 5,020,474.05
139 17,702,393.88 180 9,416,767.25 221 4,941,100.00
140 17,434,168.69 181 9,271,506.54 222 4,862,923.56
141 17,169,910.03 182 9,128,412.56 223 4,785,927.07
142 16,909,559.96 183 8,987,453.50 224 4,710,093.11
143 16,653,061.37 184 8,848,598.04 225 4,635,404.51
144 16,400,357.96 185 8,711,815.30 226 4,561,844.37
145 16,151,394.28 186 8,577,074.85 227 4,489,396.01
146 15,906,115.66 187 8,444,346.72 228 4,418,043.02
147 15,664,468.24 188 8,313,601.34 229 4,347,769.21
148 15,426,398.94 189 8,184,809.61 230 4,278,558.65
149 15,191,855.43 190 8,057,942.84 231 4,210,395.62
150 14,960,786.18 191 7,932,972.74 232 4,143,264.63
151 14,733,140.36 192 7,809,871.45 233 4,077,150.44
152 14,508,867.93 193 7,688,611.52 234 4,012,037.99
153 14,287,919.54 194 7,569,165.89 235 3,947,912.50
154 14,070,246.57 195 7,451,507.89 236 3,884,759.34
155 13,855,801.09 196 7,335,611.24 237 3,822,564.15
156 13,644,535.91 197 7,221,450.06 238 3,761,312.74
157 13,436,404.47 198 7,108,998.83 239 3,700,991.15
158 13,231,360.93 199 6,998,232.41 240 3,641,585.61
159 13,029,360.09 200 6,889,126.01 241 3,583,082.57
160 12,830,357.42 201 6,781,655.23 242 3,525,468.67
161 12,634,309.03 202 6,675,795.99 243 3,468,730.72
42
Final Maturity Reserve Schedule (cont.)
Aggregate Aggregate Aggregate
Principal Principal Principal
Period Balance ($) Period Balance ($) Period Balance ($)
------ ----------- ------ ----------- ------ -----------
244 3,412,855.76 285 1,727,909.57 326 840,233.69
245 3,357,831.01 286 1,698,741.54 327 825,006.48
246 3,303,643.86 287 1,670,026.40 328 810,022.45
247 3,250,281.89 288 1,641,757.35 329 795,277.92
248 3,197,732.89 289 1,613,927.73 330 780,769.24
249 3,145,984.78 290 1,586,530.96 331 766,492.85
250 3,095,025.70 291 1,559,560.55 332 752,445.22
251 3,044,843.94 292 1,533,010.12 333 738,622.87
252 2,995,427.97 293 1,506,873.37 334 725,022.39
253 2,946,766.42 294 1,481,144.11 335 711,640.41
254 2,898,848.09 295 1,455,816.23 336 698,473.60
255 2,851,661.97 296 1,430,883.70 337 685,518.69
256 2,805,197.16 297 1,406,340.61 338 672,772.46
257 2,759,442.96 298 1,382,181.10 339 660,231.74
258 2,714,388.81 299 1,358,399.41 340 647,893.39
259 2,670,024.32 300 1,334,989.89 341 635,754.34
260 2,626,339.22 301 1,311,946.93 342 623,811.54
261 2,583,323.43 302 1,289,265.04 343 612,062.01
262 2,540,966.99 303 1,266,938.78 344 600,502.80
263 2,499,260.10 304 1,244,962.81 345 589,131.01
264 2,458,193.09 305 1,223,331.86 346 577,943.77
265 2,417,756.45 306 1,202,040.75 347 566,938.27
266 2,377,940.80 307 1,181,084.36 348 556,111.74
267 2,338,736.88 308 1,160,457.66 349 545,461.44
268 2,300,135.60 309 1,140,155.67 350 534,984.67
269 2,262,127.98 310 1,120,173.52 351 524,678.78
270 2,224,705.18 311 1,100,506.39 352 514,541.16
271 2,187,858.48 312 1,081,149.52 353 504,569.23
272 2,151,579.30 313 1,062,098.24 354 494,760.45
273 2,115,859.19 314 1,043,347.94 355 485,112.32
274 2,080,689.80 315 1,024,894.09 356 475,622.39
275 2,046,062.92 316 1,006,732.20 357 466,288.22
276 2,011,970.47 317 988,857.89 358 457,107.43
277 1,978,404.46 318 971,266.79 359 448,077.66
278 1,945,357.05 319 953,954.63 360 439,196.59
279 1,912,820.48 320 936,917.21
280 1,880,787.14 321 920,150.36
281 1,849,249.51 322 903,650.00
282 1,818,200.18 323 887,412.09
283 1,787,631.85 324 871,432.67
284 1,757,537.34 325 855,707.82
43
Final Maturity Reserve Trust: The trust created pursuant to Section 8.09 and
designated as the "Final Maturity Reserve Trust," consisting of the Final
Maturity Reserve Account and the Final Maturity Reserve Trustee's rights
thereunder.
Final Maturity Reserve Trustee: The Securities Administrator or any successor
Final Maturity Reserve Trustee appointed as provided herein.
Final Scheduled Distribution Date: With respect to the Class I Certificates, the
Distribution Date following the month of the scheduled maturity date of the
Group I Mortgage Loan having the latest scheduled maturity date as of the
Cut-off Date. With respect to the Class II Certificates, the Distribution Date
occurring in January 2037.
Fitch: Fitch Rating Services, Inc.
Fixed Payer Rate: The fixed rate payable with respect to each of the first 84
Distribution Dates, which is 5.100% per annum.
Form 8-K Disclosure Information: As defined in Section 4.05(a)(iii).
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation (FHLMC), or any
successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note which is added to the
Index in order to determine the related Mortgage Rate, as set forth in the
Mortgage Loan Schedule.
Group Expense Percentage: With respect to the expenses set forth under clause
(A) of "Available Funds" that are not allocated to the Group I Mortgage Loans or
the Group II Mortgage Loans separately, the percentage of such non-allocated
expenses borne by each group, based upon a fraction converted to a percentage,
the numerator of which is the Stated Principal Balance of each such Group of
Mortgage Loans and the denominator of which is the Stated Principal Balance of
all the Mortgage Loans.
Group I Excess Cash Flow: With respect to any Distribution Date and the Group I
Mortgage Loans, the amount of Available Funds related to the Group I Mortgage
Loans remaining after distribution of all amounts pursuant to Section 8.05(a)
and 8.05(b).
Group I Excess Overcollateralization Amount: With respect to any Distribution
Date, the excess, if any, of the Group I Overcollateralization Amount over the
Group I Overcollateralization Target Amount.
Group I Initial Overcollateralization Amount: $2,157,438.43.
Group I Interest Remittance Amount: For any Distribution Date, the amount of
Available Funds attributable to interest with respect to the Group I Mortgage
Loans for the related Due Period less (i) the applicable Triad Premium and (ii)
any Net Swap Payment or Swap Termination Payment owed to the Swap Provider
(other than due to a Swap Provider Trigger Event). For the avoidance of doubt,
any fees, charges and other amount required to be paid or reimbursed in
44
accordance with clause (A) -(D) of the definition of Available Funds will first
be paid or reimbursed from funds attributable to interest in respect of the
Group I Mortgage Loans and, if such funds are insufficient, then from funds
attributable to principal in respect of the Group I Mortgage Loans.
Group I Marker Rate: With respect to the Class I-C-1 REMIC III Regular Interest
and any Distribution Date, a per annum rate equal to two times the weighted
average of the Pass-Through Rates for the Corresponding REMIC II Marker
Interests and REMIC II Regular Interest I-LTZZ with the rate on each
Corresponding REMIC II Marker Interest subject to a cap equal to the lesser of
(i) LIBOR plus the applicable Pass-Through Margin of its Corresponding Class and
(ii) the Group I REMIC Cap for such Distribution Date for the purpose of this
calculation and with the rate on REMIC II Regular Interest I-LTZZ subject to a
cap of zero for the purpose of this calculation; provided, however, that solely
for this purpose, calculations of the Pass-Through Rate and the related caps
with respect to each Corresponding REMIC II Marker Interests shall be multiplied
by a fraction, the numerator of which is the actual number of days in the
Accrual Period and the denominator of which is 30.
Group I Mortgage Loans: The Mortgage Loans listed in Schedule A-1.
Group I Net Mortgage Rate: With respect to each Group I Mortgage Loan, the then
applicable Mortgage Rate thereon minus the sum of the applicable (i) Servicing
Fee Rate, (ii) the Master Servicing Fee Rate, and (iii) the applicable LPMI Fee
Rate (including the Triad Premium).
Group I Net WAC: With respect to the Group I Offered Certificates and any
Distribution Date, the excess of (1) the weighted average of the Group I Net
Mortgage Rates on the Group I Mortgage Loans as of the first day of the related
Due Period over (2) the sum of (i) a per annum rate equal to the Net Swap
Payment with respect to the Swap Agreement payable to the Swap Provider on such
Distribution Date, divided by the Stated Principal Balance of the Group I
Mortgage Loans as of the first day of the related Due Period, multiplied by 12,
and (ii) a per annum rate equal to any Swap Termination Payment with respect to
the Swap Agreement (other than due to a Swap Provider Trigger Event) payable to
the Swap Provider on such Distribution Date, divided by the Stated Principal
Balance of the Group I Mortgage Loans as of the first day of the related Due
Period, multiplied by 12.
Group I Net Rate Cap: For any Distribution Date, the product of (i) the Group I
Net WAC multiplied by (ii) the quotient of 30 divided by the number of days in
the Accrual Period.
Group I Overcollateralization Amount: For any Distribution Date, the amount, if
any, by which (i) the aggregate Stated Principal Balance of the Group I Mortgage
Loans (after giving effect to Scheduled Monthly Payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) exceeds
(ii) the aggregate Certificate Principal Balance of the Class I-A, Class I-B and
Class I-P Certificates plus one-half of the aggregate Certificate Principal
Balance of the Class R and Class RX Certificates as of such Distribution Date
(after taking into account the principal distributed on that Distribution Date
and the increase of any Certificate Principal Balance of any Class of
Certificates as a result of Subsequent Recoveries).
45
Group I Overcollateralization Deficiency Amount: With respect to any
Distribution Date, the excess, if any, of the Group I Target
Overcollateralization Amount for such Distribution Date over the Group I
Overcollateralization Amount for such Distribution Date, after giving effect to
distribution of the Group I Principal Distribution Amount, but prior to
allocation of the Realized Losses to the Certificates, on such Distribution
Date.
Group I Overcollateralization Release Amount: With respect to any Distribution
Date for which the Group I Excess Overcollateralization Amount is, or would be,
after taking into account all other distributions to be made on that
Distribution Date, greater than zero, an amount equal to the lesser of the (i)
the Group I Excess Overcollateralization Amount for that Distribution Date and
(ii) principal collected on the Group I Mortgage Loans with respect to that
Distribution Date.
Group I Principal Distribution Amount: For any Distribution Date, the Group I
Principal Remittance Amount minus any Group I Overcollateralization Release
Amount for such Distribution Date.
Group I Principal Remittance Amount: For any Distribution Date, the amount of
Available Funds attributable to principal with respect to the Group I Mortgage
Loans for the related Due Period and Prepayment Period less (b) any amounts
payable to the Swap Provider (including any Net Swap Payment and any Swap
Termination Payment (to the extent not received from a replacement provider)
owed to the Swap Provider (other than due to a Swap Provider Trigger Event) not
covered by the Interest Remittance Amount.
Group I Regular Interests: Any of the REMIC I Regular Interests, REMIC II
Regular Interests, REMIC III Regular Interests, Class I-B-4 REMIC IV Regular
Interest, Class I-C-1 REMIC V Regular Interest, Class I-P REMIC VI Regular
Interest and Class I-Swap-IO REMIC VII Regular Interest.
Group I REMIC Cap: For federal income tax purposes, for any Distribution Date
with respect to the REMIC III Regular Interests corresponding to the Class I
Certificates, the weighted average (adjusted for the actual number of days
elapsed in the related Accrual Period) of the Pass-Through Rates on the REMIC II
Regular Interests (other than REMIC II Regular Interest I-LTIO), weighted on the
basis of the Uncertificated Balance of each such REMIC II Regular Interest.
Group I Stepdown Date: The earlier to occur of (a) the Distribution Date on
which the aggregate Certificate Principal Balance of the Class I-A Certificates
is reduced to zero and (b) the later to occur of (i) the Distribution Date
occurring in February 2010 and (ii) the first Distribution Date on which the
aggregate Certificate Principal Balance of the Class I-B Certificates plus the
Group I Overcollateralization Amount divided by the aggregate Stated Principal
Balance of the Group I Mortgage Loans is greater than or equal to 9.00%.
Group I Target Overcollateralization Amount: With respect to any Distribution
Date, (i) prior to the Group I Stepdown Date, an amount equal to 0.50% of the
Cut-off Date Balance of the Group I Mortgage Loans; (ii) on or after the Group I
Stepdown Date provided a Group I Trigger Event is not in effect, the greater of
(x) 1.00% of the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after giving effect to
46
Scheduled Monthly Payments of principal due during the related Due Period, to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period, and after reduction for Realized
Losses incurred during the related Due Period) and (y) 0.50% of the Cut-off Date
Balance of the Group I Mortgage Loans; or (iii) on or after the Group I Stepdown
Date and if a Group I Trigger Event is in effect, the Group I
Overcollateralization Target Amount for the immediately preceding Distribution
Date.
Group I Trigger Event: With respect to any Distribution Date, a Group I Trigger
Event shall have occurred if either (a) the Rolling Three Month Delinquency Rate
as of the last day of the related Due Period equals or exceeds 40% of the sum of
(i) the aggregate Certificate Principal Balances of the Class I-B Certificates
and (ii) the Group I Overcollateralization Amount, both determined as of such
Distribution Date after giving effect to all distributions to be made on such
Distribution Date, or (b) if the Cumulative Realized Loss Percentage of the
Group I Mortgage Loans exceeds:
--------------------------------------------------------------------
Distribution Date
Occurring In Percentage
--------------------------------------------------------------------
February 2009 - January 2010 0.15%
--------------------------------------------------------------------
February 2010 - January 2011 0.25%
--------------------------------------------------------------------
February 2011 - January 2012 0.50%
--------------------------------------------------------------------
February 2012 - January 2013 0.70%
--------------------------------------------------------------------
February 2013 and thereafter 0.75%
--------------------------------------------------------------------
Group II Adjusted Rate Cap: For any Distribution Date and any Group II Offered
Certificate, the Group II Net Rate Cap for such Distribution Date, computed for
this purpose by first reducing the Group II Net WAC by a per annum rate equal to
the product of (i) the Group II Net Deferred Interest for such Distribution Date
multiplied by (ii) the quotient of 12 divided by the aggregate stated principal
balance or the Group II Mortgage Loans as of the first day of the related Due
Period.
Group II Allocated Net Deferred Interest: As defined in Section 8.11.
Group II Excess Cash Flow: With respect to any Distribution Date and the Group
II Mortgage Loans, the amount of Available Funds related to the Group II
Mortgage Loans remaining after distribution of all amounts pursuant to Section
8.05(f) and 8.05(g).
Group II Excess Overcollateralization Amount: With respect to any Distribution
Date, the excess, if any, of the Group II Overcollateralization Amount over the
Group II Overcollateralization Target Amount.
Group II Initial Overcollateralization Amount: $2,476,348.82.
Group II Interest Remittance Amount: For any Distribution Date, the amount of
Available Funds attributable to interest with respect to the Group II Mortgage
Loans for the related Due Period, plus the amount of any Principal Prepayments
that otherwise would have been included in the Group II Principal Remittance
47
Amount for such Distribution Date but that are applied to the Group II Interest
Remittance Amount in accordance with the definition of Group II Net Deferred
Interest. For the avoidance of doubt, any fees, charges and other amount
required to be paid or reimbursed in accordance with clause (A) -(D) of the
definition of Available Funds will first be paid or reimbursed from funds
attributable to interest in respect of the Group II Mortgage Loans and , if such
funds are insufficient, then from funds attributable to principal in respect of
the Group II Mortgage Loans.
Group II Marker Rate: With respect to the Class II REMIC A3 Regular Interest and
any Distribution Date, a per annum rate equal to two times the weighted average
of the Pass-Through Rates for the Corresponding REMIC A2 Marker Interests and
REMIC A2 Regular Interest II-LTZZ, with the rate on each Corresponding REMIC A2
Marker Interest subject to a cap equal to the lesser of (i) LIBOR plus the
applicable Pass-Through Rate of its Corresponding Class and (ii) the Group II
REMIC Cap for such Distribution Date for purposes of this calculation and with
the rate on REMIC A2 Regular Interest II-LTZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that solely for this purpose,
calculations of the Pass-Through Rate and related caps with respect to each
Corresponding REMIC A2 Marker Interest shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Accrual Period and the
denominator of which is 30.
Group II Mortgage Loans: The Mortgage Loans that are listed in Schedule A-2.
Group II Net Deferred Interest: With respect to the Group II Mortgage Loans and
any Distribution Date, the excess, if any, of (i) the deferred interest on the
Group II Mortgage Loans for the related Due Period over (ii) the aggregate
amount of principal prepayments in whole or in part received with respect to the
Group II Mortgage Loans for the related Prepayment Period.
Group II Net Mortgage Rate: With respect to each Group II Mortgage Loan, the
then applicable Mortgage Rate thereon minus the sum of the applicable (i)
Servicing Fee Rate, (ii) the Master Servicing Fee Rate, (iii) the applicable
LPMI Fee Rate (including the Triad Premium), and (iv) for each Distribution Date
on or after the Distribution Date in February 2017, the Final Maturity Reserve
Rate.
Group II Net Rate Cap: For any Distribution Date, the product of (i) the Group
II Net WAC multiplied by (ii) the quotient of 30 divided by the actual number of
days in the Accrual Period.
Group II Net WAC: With respect to the Class II Certificates and any Distribution
Date, the weighted average of the Group II Net Mortgage Rates as of the first
day of the related Due Period.
Group II Overcollateralization Amount: For any Distribution Date, the amount, if
any, by which (i) the aggregate Stated Principal Balance of the Group II
Mortgage Loans (after giving effect to Scheduled Monthly Payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) exceeds (ii) the aggregate Certificate Principal Balance of the Class
II-A, Class II-B and Class II-P Certificates plus one-half of the aggregate
Certificate Principal Balance of the Class R and Class RX Certificates as of
such Distribution Date (after taking into account the principal distributed on
48
that Distribution Date and the increase of any Certificate Principal Balance of
any Class of Certificates as a result of Subsequent Recoveries or the allocation
of Group II Allocated Net Deferred Interest).
Group II Overcollateralization Deficiency Amount: With respect to any
Distribution Date, the excess, if any, of the Group II Target
Overcollateralization Amount for such Distribution Date over the Group II
Overcollateralization Amount for such Distribution Date, after giving effect to
distribution of the Group II Principal Distribution Amount, but prior to
allocation of the Realized Losses to the Certificates, on such Distribution
Date.
Group II Overcollateralization Release Amount: With respect to any Distribution
Date for which the Group II Excess Overcollateralization Amount is, or would be,
after taking into account all other distributions to be made on that
Distribution Date, greater than zero, an amount equal to the lesser of the (i)
the Group II Excess Overcollateralization Amount for that Distribution Date and
(ii) principal collected on the Group II Mortgage Loans with respect to that
Distribution Date
Group II Principal Distribution Amount: For any Distribution Date, the Group II
Principal Remittance Amount minus any Group II Overcollateralization Release
Amount for such Distribution Date.
Group II Principal Remittance Amount: For any Distribution Date, the amount of
Available Funds attributable to principal with respect to the Group II Mortgage
Loans for the related Due Period and Prepayment Period, less the amount of
Principal Prepayments that would otherwise have been included in the Group II
Principal Remittance Amount but which are included in the Group II Interest
Remittance Amount in accordance with the definition of Group II Net Deferred
Interest.
Group II Regular Interests: Any of the REMIC A1 Regular Interests, REMIC A2
Regular Interests, REMIC A3 Regular Interests, Class II-B-6 REMIC A4 Regular
Interests, Class II-C REMIC A5 Regular Interest, Class II-F REMIC A5 Regular
Interest and Class II-P REMIC A6 Regular Interest.
Group II REMIC Cap: For federal income tax purposes, for any Distribution Date
with respect to the REMIC A3 Regular Interests corresponding to the Class II
Certificates, the weighted average (adjusted for the actual number of days
elapsed in the related Accrual Period) of the Pass-Through Rates on the REMIC A2
Regular Interests (other than REMIC A2 Regular Interest II-LTF), weighted on the
basis of the Uncertificated Balance of each such REMIC A2 Regular Interest.
Group II Stepdown Date: The earlier to occur of (a) the Distribution Date on
which the aggregate Certificate Principal Balance of the Class II-A Certificates
is reduced to zero and (b) the later to occur of (i) the Distribution Date
occurring in February 2010 and (ii) the first Distribution Date on which the
aggregate Certificate Principal Balance of the Class II-B Certificates plus the
Group II Overcollateralization Amount divided by the aggregate Stated Principal
Balance of the Group II Mortgage Loans is greater than or equal to (x) prior to
the Distribution Date in February 2013, 16.875% and (y) on or after the
Distribution Date in February 2013, 13.50%.
49
Group II Target Overcollateralization Amount: With respect to any Distribution
Date, (i) prior to the Group II Stepdown Date, an amount equal to 0.90% of the
Cut-off Date Balance of the Group II Mortgage Loans, or (ii) on or after the
Group II Stepdown Date an amount equal to the greater of (x)(1) prior to the
Distribution Date in February 2013, 2.25% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the last day of the related Due
Period (after giving effect to Scheduled Monthly Payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related Due
Period) and (2) on or after the Distribution Date in February 2013, 1.80% of the
aggregate Stated Principal Balance of the Group II Mortgage Loans as of the last
day of the related Due Period (after giving effect to Scheduled Monthly Payments
of principal due during the related Due Period, to the extent received or
advanced, and unscheduled collections of principal received during the related
Prepayment Period, and after reduction for Realized Losses incurred during the
related Due Period), and (y) 0.50% of the Cut-off Date Balance of the Group II
Mortgage Loans, and (iii) on or after the Group II Stepdown Date and if a Group
II Trigger Event is in effect, the Group II Overcollateralization Target Amount
for the immediately preceding Distribution Date.
Group II Trigger Event: With respect to any Distribution Date after the Stepdown
Date, a Group II Trigger Event shall have occurred if either (a) the Rolling
Three Month Delinquency Rate as of the last day of the related Due Period
exceeds 40% of the sum of (i) the aggregate Certificate Principal Balances of
the Class II-B Certificates and (ii) the Group II Overcollateralization Amount,
both determined as of such Distribution Date after giving effect to all
distributions to be made on such Distribution Date, or (b) if the Cumulative
Realized Loss Percentage of the Group II Mortgage Loans exceeds:
-----------------------------------------------------------------
Distribution Date
Occurring In Percentage
-----------------------------------------------------------------
February 2009 - January 2010 0.15%
-----------------------------------------------------------------
February 2010 - January 2011 0.35%
-----------------------------------------------------------------
February 2011 - January 2012 0.60%
-----------------------------------------------------------------
February 2012 - January 2013 0.85%
-----------------------------------------------------------------
February 2013 - January 2014 1.15%
-----------------------------------------------------------------
February 2014 and thereafter 1.25%
-----------------------------------------------------------------
HUD: The United States Department of Housing and Urban Development, or any
successor thereto.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and Exchange
Commission's Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct or
indirect financial interest in such other Person or any Affiliate of such other
Person, (c) is not connected with such other Person or any Affiliate of such
other Person as an officer, employee, promoter, underwriter, trustee, partner,
50
director or Person performing similar functions and (d) is not a member of the
immediate family of a Person defined in clause (b) or (c) above.
Index: The index specified in the related Mortgage Note for calculation of the
Mortgage Rate thereof.
Initial Certification: A certification as to the completeness of each Mortgage
File provided by the Custodian on the Closing Date in accordance with the
Custodial Agreement.
Insurance Policy: With respect to any Mortgage Loan included in the Trust Fund,
any Primary Mortgage Insurance Policy (including any LPMI Policy) or any other
insurance policy (including any policy covering any Mortgage Loan or Mortgaged
Property, including without limitation, any hazard insurance policy required
pursuant to Section 5.14, any title insurance policy relating thereto and any
Federal Housing Administration insurance policies and Department of Veterans
Affairs insurance policies), including all riders and endorsements thereto in
effect, including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other insurance
policy with respect to the Mortgage Loans.
Interest Carry Forward Amount: As of any Distribution Date and any Class of
Certificates, an amount equal to the sum of (i) the excess of (a) the Interest
Distribution Amount for such Class with respect to prior Distribution Dates over
(b) the amount actually distributed to such Class of Certificates with respect
to interest on or after such prior Distribution Dates and (ii) interest thereon
at the applicable Pass-Through Rate.
Interest Distribution Amount: As of any Distribution Date and any Class of
Certificates, an amount equal to interest accrued during the related Accrual
Period on the Certificate Principal Balance of that Class immediately prior to
the Distribution Date at the Pass-Through Rate for that Class, in each case,
reduced by any Net Prepayment Interest Shortfalls and any Relief Act Reductions
and, with respect to the Class II Certificates, the Group II Allocated Net
Deferred Interest allocated to such Class pursuant to Section 8.11. Net
Prepayment Interest Shortfalls and Relief Act Reductions incurred in respect of
the Group I Mortgage Loans will be allocated to the Class I Certificates, pro
rata, based on the ratio of the Interest Distribution Amount for such Class to
the sum of the Interest Distribution Amounts for all Classes of Class I
Certificates, in each case with respect to such Distribution Date, without
regard to Net Prepayment Interest Shortfalls or Relief Act Reductions. Net
Prepayment Interest Shortfalls and Relief Act Reductions incurred in respect of
the Group II Mortgage Loans will be allocated to the Class II Certificates, pro
rata, based on the ratio of the Interest Distribution Amount for such Class to
the sum of the Interest Distribution Amounts for all Classes of Class II
Certificates, in each case with respect to such Distribution Date, without
regard to Net Prepayment Interest Shortfalls or Relief Act Reductions.
Investment Letter: As defined in Section 9.02.
51
Issuing Entity: Luminent Mortgage Trust 2007-1.
Investor-Based Class Exemption: One of the Prohibited Transaction Class
Exemptions ("PTCE") issued by the Department of Labor including PTCE 90-1
(regarding investments by insurance pooled separate accounts), PTCE 91-38
(regarding investments by bank collective funds), PTCE 84-14 (regarding
investment decision made by a qualified plan asset managers), PTCE 95-60
(regarding investments by insurance company general accounts) and PTCE 96-23
(regarding investment decisions by in-house asset managers).
LIBOR: As to any Distribution Date, the London Interbank offered rate for
one-month U.S. Dollar deposits, as determined by the Securities Administrator in
accordance with Section 8.03.
Liquidated Mortgage Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the
Prepayment Period related to such Distribution Date and as to which the
applicable Servicer has certified to the Master Servicer and the Securities
Administrator that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan, including the final
disposition of any REO Property.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Servicer,
such expenses including (a) property protection expenses, (b) property sales
expenses, (c) foreclosure and sale costs, including court costs and reasonable
attorneys' fees, and (d) similar expenses reasonably paid or incurred in
connection with liquidation.
Liquidation Proceeds: Cash received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the related
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of the
Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to Mortgage Loan secured by a first
lien mortgage, the ratio of the original loan amount of such Mortgage Loan at
its origination (unless otherwise indicated) to (a) the Appraised Value of the
Mortgaged Property. With respect to any Mortgage Loan secured by a junior lien
position, a fraction, expressed as a percentage, the numerator of which is the
sum of (1) the original loan amount of the related Mortgage Loan and (2) any
outstanding principal balance of Mortgage Loans the liens on which are equal in
priority or senior to the lien on such related Mortgage Loan (each such sum
calculated at the date of origination of such related Mortgage Loan), and the
denominator of which is the Appraised Value of the Mortgaged Property.
London Business Day: Any day other than a Saturday or a Sunday or a day on which
banking institutions in the cities of London, England or New York, New York are
required or authorized by law to be closed.
Losses: As defined in Section 12.03.
LPMI Fee Rate: With respect to any Mortgage Loan that is indicated in the
Mortgage Loan Schedule as covered by an LPMI Policy, the applicable rate defined
in the applicable Servicing Agreement, and set forth on the Mortgage Loan
Schedule.
52
LPMI Policy: A Primary Mortgage Insurance Policy with respect to a Mortgage
Loan, the premiums of which are paid by someone other than the Mortgagor from
its own funds, without reimbursement.
LPMI Proceeds: Proceeds of any LPMI Policy.
Majority in Interest: As to the Certificates or any Class thereof, the Holders
of Certificates or Certificates of such Class evidencing, in the aggregate, at
least 51% of the Percentage Interests evidenced by all Certificates or all
Certificates of such Class.
Margin Stepup Date: The first Distribution Date after the date on which the
Clean-up Call may be exercised.
Master Servicer: Xxxxx Fargo Bank, N.A. and its successors and assigns, in its
capacity as master servicer hereunder.
Master Servicer Event of Default: As defined in Section 5.09.
Master Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to (i) one twelfth of the Master Servicing Fee Rate multiplied by
(ii) the Stated Principal Balance of such Mortgage Loan as of the first day of
the related Due Period.
Master Servicing Fee Rate: 0.0185% per annum.
Material Defect: With respect to any Mortgage Loan, as defined in Section 2.05.
Maximum Final Maturity Reserve Amount: For the Group II Mortgage Loans and each
Distribution Date beginning with the Distribution Date in January 2017, an
amount equal to the amount calculated in clause (a) of the definition of Final
Maturity Reserve Amount.
Maximum I-LTZZ Uncertificated Accrued Interest Deferral Amount: With respect to
any Distribution Date, the excess of (i) accrued interest at the Uncertificated
REMIC II Pass-Through Rate applicable to REMIC II Regular Interest I-LTZZ for
such Distribution Date on a balance equal to the Uncertificated Balance of REMIC
II Regular Interest I-LTZZ minus the REMIC II Overcollateralization Amount, in
each case for such Distribution Date, over (ii) the Uncertificated Accrued
Interest on the Corresponding REMIC II Marker Interests for such Distribution
Date, with the rate on each such REMIC II Regular Interest subject to a cap
equal to the lesser of (i) LIBOR plus the applicable Pass-Through Margin of its
Corresponding Class and (ii) the Group I REMIC Cap; provided, however, that
solely for this purpose, calculations of the Pass-Through Rate and the related
caps with respect to each Corresponding REMIC II Marker Interest shall be
multiplied by a fraction, the numerator of which is the actual number of days in
the Accrual Period and the denominator of which is 30.
Maximum II-LTZZ Uncertificated Accrued Interest Deferral Amount: With respect to
any Distribution Date, the excess of (i) accrued interest at the Uncertificated
REMIC A2 Pass-Through Rate applicable to REMIC A2 Regular Interest II-LTZZ for
such Distribution Date on a balance equal to the Uncertificated Balance of REMIC
A2 Regular Interest II-LTZZ minus the REMIC A2 Overcollateralized Amount, in
each case for such Distribution Date, over (ii) the Uncertificated Accrued
53
Interest on the Corresponding REMIC A2 Marker Interests for such Distribution
Date, with the rate on each such REMIC A2 Regular Interest such to a cap equal
to the lesser of (i) LIBOR plus the applicable Pass-Through Margin of its
Corresponding Class and (ii) the Group II REMIC Cap; provided, however, that
solely for this purpose, calculations of the Pass-Through Rate and related caps
with respect to each Corresponding REMIC A2 Marker Interest shall be multiplied
by a fraction, the numerator of which is the actual number of days in the
Accrual Period and the denominator of which is 30.
MERS: MERSCORP, Inc., its successor and assigns.
MERS Designated Mortgage Loan: A Mortgage Loan for which (a) the Seller has
designated or will designate MERS as, and have taken or will take such action as
is necessary to cause MERS to be, the mortgagee of record, as nominee for the
Seller and its successors and assigns, in accordance with MERS Procedures Manual
and (b) the Seller has designated or will designate the Trustee as the Investor
on the MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more particularly
described in the MERS Procedures Manual.
Monthly Advance: With respect to any Group I Mortgage Loan on any Determination
Date, an amount equal to the portion of each Scheduled Monthly Payment due in
the Due Period to which such Determination Date relates that is delinquent at
the close of business on such Determination Date, excluding any balloon payment
or any shortfalls attributable to the Relief Act, and, with respect to any Group
II Mortgage Loan on any Determination Date, an amount equal to the minimum
payment, as specified in the related Mortgage Note, that is delinquent at the
close of business on such Distribution Date, excluding any balloon payment or
any shortfalls attributable to the Relief Act.
Moody's: Xxxxx'x Investors Service, Inc.
Mortgage: The mortgage, deed of trust or other instrument securing a Mortgage
Note, which creates a lien on an estate in fee simple or leasehold estate in
real property securing the Mortgage Note.
Mortgage File: The mortgage documents listed on Exhibit C hereto pertaining to a
particular Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan sold and subject to this Agreement being
identified on the Mortgage Loan Schedule hereto, which Mortgage Loan includes
without limitation the Mortgage File, the Scheduled Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The documents referred to in Section (a) of Exhibit C.
54
Mortgage Loan Purchase Agreement: Any of (i) the Mortgage Loan Purchase and Sale
Agreement, dated as of November 1, 2006, by and between Washington Mutual
Mortgage Securities Corp., as seller, and the Sponsor, Mercury Mortgage Finance
Statutory Trust, Seller, as purchasers; and (ii) the Purchase Price and Terms
Letter, dated as of November 22, 2006, which incorporates by reference the Flow
Sale and Servicing Agreement, dated as of April 21, 2006, by and between the
Sponsor, the Seller, Mercury Mortgage Finance Statutory Trust, as purchasers,
and IndyMac Bank, F.S.B., as seller.
Mortgage Loan Remittance Rate: With respect to any Mortgage Loan, the related
Mortgage Rate less the Servicing Fee Rate and the LPMI Fee Rate (except the LPMI
Fee Rate with respect to the Triad Policy).
Mortgage Loan Schedule: The list of Mortgage Loans transferred to the Trustee,
or the Custodian on its behalf, as part of the Trust Fund and from time to time
subject to this Agreement attached hereto as Schedule A that sets forth the
information required on Exhibit B for each Mortgage Loan.
Mortgage Note: With respect to any Mortgage Loan, the original executed note or
other evidence of indebtedness evidencing the indebtedness of a Mortgagor under
such Mortgage Loan, including any riders or addenda thereto.
Mortgage Rate: With respect to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan from time to time in accordance with the
provisions of the related Mortgage Note.
Mortgaged Property: With respect to any Mortgage Loan, the real property
securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: With respect to any Mortgage Loan, the obligor on a Mortgage Note.
Negative Amortization: The increase in the Stated Principal Balance of a Group
II Mortgage Loan from the Cut-off Date as a result of the Scheduled Monthly
Payment on any such Mortgage Loan being less than the accrued interest on such
Mortgage Loan.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the amount by
which the aggregate of Prepayment Interest Shortfalls during the related
Prepayment Period exceeds the Compensating Interest Payments made with respect
to such Distribution Date.
Net Swap Payment: The amount, if any, owed to the Swap Provider after netting
any amounts due from the Swap Provider with respect to any Distribution Date.
Non-Mortgagor Prepayment Premium Payment Amount: With respect to any Mortgage
Loan that is prepaid in full and that is subject to a Prepayment Premium, in any
case where the Mortgage Loan Schedule indicates that the Issuing Entity owns
such Prepayment Premium, the amount payable by the related Servicer in respect
of any such Prepayment Premium that is waived or not collected. Such amount
shall equal the difference between the amount of Prepayment Premium due by the
related Mortgagor (and not properly waived) and the actual amount paid. Such
55
amounts, to the extent payable by the related Servicer pursuant to its Servicing
Agreement, shall not be part of any Trust REMIC.
Non-permitted Foreign Holder: As defined in Section 9.02.
Non-recoverable Advance: Any Servicing Advance (in respect of the related
Servicer only) or Monthly Advance previously made or proposed to be made in
respect of a Mortgage Loan or REO Property by the related Servicer or Master
Servicer (in its capacity as successor servicer) which, in the good faith
judgment of the related Servicer or Master Servicer, as applicable, in
accordance with Accepted Servicing Practices will not or, in the case of a
proposed Servicing Advance or Monthly Advance, would not, ultimately be
recoverable by such Servicer or Master Servicer from the related Mortgagor,
related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds or otherwise. The determination by the related Servicer
that all or a portion of a Servicing Advance or Monthly Advance would be a
Non-recoverable Advance shall be evidenced by an Officer's Certificate delivered
to the Master Servicer and the Securities Administrator setting forth such
determination and a reasonable explanation thereof.
Non-U.S. Person: A Person that is not a U.S. Person.
Notional Amount: With respect to any Distribution Date and the Class I-C-1 REMIC
III Regular Interest, the Class I-C-1 REMIC VII Regular Interest and the Class
I-C-1 Certificates, a notional amount equal to the aggregate Uncertificated
Balance of the REMIC II Regular Interests (other than REMIC II Regular Interest
I-LTP, REMIC II Regular Interest I-LTR and REMIC II Regular Interest I-LTIO).
With respect to any Distribution Date and the Class II-C REMIC A3 Regular
Interest, the Class II-C REMIC A5 Regular Interest and the Class II-C
Certificates, a notional amount equal to the aggregate Uncertificated Balance of
the REMIC A2 Regular Interests (other than REMIC A2 Regular Interest II-LTP,
REMIC A2 Regular Interest II-LTR and REMIC A2 Regular Interest II-LTF).
Offered Certificates: The Class I and Class II Certificates.
Officer's Certificate: A certificate (a) signed by the Chairman of the Board,
the Vice Chairman of the Board, the President, a Managing Director, a Vice
President, an Assistant Vice President, the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Depositor or the
Servicer, as the case may be, or (b), if provided for in this Agreement, signed
by a Servicing Officer and delivered to the Depositor, the Master Servicer, the
Securities Administrator and the Trustee, as the case may be, as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, which shall not be at the
expense of the Master Servicer, the Securities Administrator or the Trustee, who
may be counsel for the Seller, the Servicer, the Custodian, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee, including in-house
counsel, reasonably acceptable to the Securities Administrator, the Trustee
and/or the Master Servicer, as applicable; provided, however, that with respect
to the interpretation or application of the federal income tax or ERISA matters,
such counsel must be nationally recognized as expert in the federal income tax
56
or ERISA aspects, as applicable, of asset securitization and must be Independent
of the Securities Administrator, the Trustee and the Master Servicer.
Originator: Any of Washington Mutual Mortgage Securities Corp. and IndyMac Bank,
F.S.B.
Outstanding: As of the date of determination, all Certificates theretofore
executed authenticated and delivered under this Agreement except:
(a) Certificates theretofore cancelled by the Certificate Registrar or
delivered to the Certificate Registrar for cancellation;
(b) Certificates the payment for which money in the necessary amount has
been theretofor deposited with the Securities Administrator in trust for the
Holders of such Certificates (provided, however, that if such Certificates are
to be redeemed, notice of such redemption has been duly given pursuant to this
Agreement or provision for such notice has been made, satisfactory to the
Securities Administrator); and
(c) Certificates in exchange for or in lieu of which other Certificates
have been authenticated and delivered pursuant to this Agreement unless proof
satisfactory to the Securities Administrator is presented that any such
Certificates are held by a bona fide purchaser;
provided, that in determining whether the Certificateholders of the requisite
Outstanding Balance of the Certificates have given any request, demand,
authorization, direction, notice, consent or waiver hereunder. Certificates
owned by the Depositor, any Servicer, or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Certificates that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded (unless such action requires the consent, waiver,
request or demand of 100% of the outstanding balance represented by a particular
Class and 100% of the outstanding balance represented by such Class is
registered in the name of one or more of the foregoing entities). Certificates
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Certificates and that the pledgee is not the
Depositor, any Servicer, or any Affiliate of any of the foregoing Persons.
Ownership Interest: As to any Certificate, any ownership or security interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial, as owner or as pledgee.
57
Pass-Through Margin: With respect to the Offered Certificates, the following
percentages:
Prior to Margin On and After Margin
Stepup Date Stepup Date
Class I-A-1 Certificates 0.160% 0.320%
Class I-A-2 Certificates 0.210% 0.420%
Class I-B-1 Certificates 0.310% 0.465%
Class I-B-2 Certificates 0.430% 0.645%
Class I-B-3 Certificates 0.950% 1.425%
Class I-B-4 Certificates 2.150% 3.225%
Class II-A-1 Certificates 0.140% 0.280%
Class II-A-2 Certificates 0.190% 0.380%
Class II-A-3 Certificates 0.240% 0.480%
Class II-B-1 Certificates 0.300% 0.450%
Class II-B-2 Certificates 0.400% 0.600%
Class II-B-3 Certificates 0.420% 0.630%
Class II-B-4 Certificates 0.500% 0.750%
Class II-B-5 Certificates 0.600% 0.900%
Class II-B-6 Certificates 1.500% 2.250%
Pass-Through Rate: With respect to the Offered Certificates, a per annum rate
equal to the least of (a) LIBOR plus the related Pass-Through Margin, (b) 10.50%
per annum and (c) the Group I or Group II Net Rate Cap for such Distribution
Date, as applicable. For federal income tax purposes, each reference to a Net
Rate Cap in the applicable Pass-Through Rate shall be deemed to be a reference
to the Group I REMIC Cap or the Group II REMIC Cap, as applicable.
With respect to the REMIC I Regular Interests, the Uncertificated REMIC I
Pass-Through Rate. With respect to the REMIC II Regular Interests, the
Uncertificated REMIC II Pass-Through Rate. With respect to the REMIC III Regular
Interests (other than the Class I-C-1 REMIC III Regular Interest and the Class
I-Swap-IO REMIC III Regular Interest), the Uncertificated REMIC III Pass-Through
Rate. With respect to the REMIC A1 Regular Interests, the Uncertificated REMIC
A1 Pass-Through Rate. With respect to the REMIC A2 Regular Interests, the
Uncertificated REMIC A2 Pass-Through Rate. With respect to the REMIC A3 Regular
Interests (other than the Class II-C REMIC A3 Regular Interest and the Class
II-F REMIC A3 Regular Interest), the Uncertificated REMIC A3 Pass-Through Rate.
With respect to the Class I-C-1 REMIC III Regular Interest and any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is (x) the sum of interest on the
Uncertificated Balance of each REMIC II Regular Interest listed in clause (y) at
a rate equal to the related Uncertificated REMIC II Pass-Through Rate minus the
Group I Marker Rate and 100% of the interest on REMIC II Regular Interest I-LTP
and REMIC II Regular Interest I-LTR and the denominator of which is (y) the
58
aggregate Uncertificated Balance of each REMIC II Regular Interest (other than
REMIC II Regular Interest I-LTP, REMIC II Regular Interest I-LTR and REMIC II
Regular Interest I-LTIO).
With respect to the Class I-C-1 REMIC V Regular Interest, 100% of the
amounts distributable with respect to the Class I-C-1 REMIC II Regular Interest.
With respect to the Class I-C-1 Certificates, 100% of the amounts distributable
with respect to the Class I-C-1 REMIC V Regular Interest.
With respect to the Class I-Swap-IO REMIC III Regular Interest, 100% of the
amounts distributable with respect to the REMIC II Regular Interest I-LTIO. With
respect to the Class I-Swap-IO REMIC VII Regular Interest, 100% of the amounts
distributable with respect to the Class I-Swap-IO REMIC III Regular Interest.
With respect to the Class I-B-4 REMIC IV Regular Interest, 100% of the
amounts distributable with respect to the Class I-B-4 REMIC III Regular
Interest.
With respect to the Class II-C REMIC A3 Regular Interest and any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is (x) the sum of interest on the
Uncertificated Balance of each REMIC A2 Regular Interest listed in clause (y) at
a rate equal to the related Uncertificated REMIC A2 Pass-Through Rate minus the
Group II Marker Rate and 100% of the interest on REMIC A2 Regular Interest
II-LTP and REMIC A2 Regular Interest II-LTR and the denominator of which is (y)
the aggregate Uncertificated Balance of each REMIC A2 Regular Interest (other
than REMIC A2 Regular Interest II-LTP, REMIC A2 Regular Interest II-LTR and
REMIC A2 Regular Interest II-LTF).
With respect to the Class II-C REMIC A5 Regular Interest, 100% of the
amounts distributable with respect to the Class II-C REMIC A3 Regular Interest.
With respect to the Class II-C Certificates, 100% of the amounts distributable
with respect to the Class II-C REMIC A5 Regular Interest and 100% of the amounts
distributable with respect to the Class II-F REMIC A5 Regular Interest.
With respect to the Class II-F REMIC A3 Regular Interest, 100% of the
amounts distributable with respect to the REMIC A2 Regular Interest II-LTF. With
respect to the Class II-F REMIC A5 Regular Interest, 100% of the amounts
distributable with respect to the Class II-F REMIC A3 Regular Interest.
With respect to the Class II-B-6 REMIC A4 Regular Interest, 100% of the
amounts distributable with respect to the Class II-B-6 REMIC A3 Regular
Interest.
The Class P Certificates, Class R Certificates and the Class RX
Certificates shall not have a Pass-Through Rate.
Pass-Through Regular Interests: Any of the Class I-Swap-IO REMIC III Regular
Interest, Class I-B-4 REMIC IV Regular Interest, Class I-C-1 REMIC V Regular
Interest, Class I-Swap-IO REMIC VII Regular Interest, Class II-F REMIC A3
Regular Interest, Class II-B-6 REMIC A4 Regular Interest, Class II-C REMIC A5
Regular Interest and Class II-F REMIC A5 Regular Interest.
59
Paying Agent: The Person appointed to make distributions on the Certificates,
which initially shall be the Securities Administrator.
Payment Adjustment Date: With respect to any Group II Mortgage Loan, each date
on which the Scheduled Monthly Payment for such Mortgage Loan is adjusted, as
indicated on the Mortgage Loan Schedule.
Payment Cap: With respect to any Mortgage Loan, the limit, if any, contained in
the related Mortgage Note restricting the adjustment of the related Scheduled
Monthly Payment on any Payment Adjustment Date, as indicated on the Mortgage
Loan Schedule.
PCAOB: The Public Company Accounting Oversight Board.
Percentage Interest: As to any Certificate (other than the Class C
Certificates), the percentage equal to the percentage obtained by dividing the
initial Certificate Principal Balance of such Certificate by the initial
aggregate Certificate Principal Balances of all Certificates of such Class and,
with respect to the Class C Certificates, the percentage interest set forth on
the face thereof, provided, however, that the sum of all such percentages for
the Class C Certificates shall total 100%.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders acquired at a purchase price of not greater than par,
regardless of whether issued or managed by the Depositor, the Trustee, the
Master Servicer, the Securities Administrator or any of their respective
affiliates or for which an affiliate serves as an advisor, will be considered a
permitted investment:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(b) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by or federal funds sold by any depository
institution or trust company (including the trustee, the securities
administrator or the master servicer or their agents acting in their
respective commercial capacities) incorporated under the laws of the United
States of America, any state thereof or the District of Columbia and
subject to supervision and examination by federal and/or state authorities,
so long as, at the time of such investment or contractual commitment
providing for such investment, such depository institution or trust company
or its ultimate parent has a short-term unsecured debt rating in one of the
two highest available rating categories of each rating agency rating the
Certificates and (B) any other demand or time deposit or deposit account
that is fully insured by the FDIC;
(c) repurchase obligations with respect to any security described in
clause (i) above and entered into with a depository institution or trust
company (acting as principal) incorporated under the laws of the United
States of America, any state thereof or the District of Columbia and rated
"A" or higher by the rating agencies rating the Certificates;
60
(d) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America, any state thereof or the District of Columbia and that are rated
by each rating agency rating the Certificates in its highest long-term
unsecured rating categories at the time of such investment or contractual
commitment providing for such investment;
(e) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) that is issued by any
corporation rated incorporated under the laws of the United States of
America, any state thereof or the District of Columbia that is rated by
each rating agency rating the Certificates in its highest short-term
unsecured debt rating available at the time of such investment;
(f) units of United States money market funds (which may be 12b-l
funds, as contemplated by the Commission under the Investment Company Act
of 1940) registered under the Investment Company Act of 1940 including
funds managed or advised by the trustee, the master servicer, the
securities administrator or an affiliate thereof having the highest
applicable rating from each rating agency rating the Certificates and such
fund; and
(g) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any other
obligation, security or investment, as may be acceptable to each rating
agency rating the Certificates in writing as a permitted investment of
funds backing securities having ratings equivalent to its highest initial
rating of the senior Certificates;
provided, however, that in each case, such Permitted Investment shall have
a final maturity (giving effect to any applicable grace period) no later than
the Business Day immediately preceding the Distribution Date (or, if the
Securities Administrator or an Affiliate is the obligor on, or managing or
advising, such Permitted Investment, the Distribution Date) next following the
Due Period in which the date of investment occurs; provided, further, however,
that, Permitted Investments may not include (i) any interest-only security, any
security purchased at a price in excess of 100% of the par value or any security
that provides for payments of both principal and interest derived from
obligations underlying such instrument and the principal and interest with
respect to such instrument provide a yield to maturity greater than 120% of the
yield to maturity at par of such underlying obligations, (ii) any floating rate
security whose interest rate is inversely or otherwise not proportionately
related to an interest rate index or is calculated as other than the sum of an
interest rate index plus a spread, (iii) securities subject to an offer, (iv)
any security with a rating from S&P which includes the subscript "p," "pi," "q,"
"r" or "t", or (v) any investment, the income from which is or will be subject
to deduction or withholding for or on account of any withholding or similar tax.
Permitted Transferee: Any person other than:
(a) a Disqualified Organization;
61
(b) a Non-U.S. Person unless such Non-U.S. Person has furnished the
transferor and the Securities Administrator with a duly completed Internal
Revenue Service Form W-8ECI or any applicable successor form; and
(c) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an ownership interest in a Residual
Certificate to such Person may cause any Trust REMIC to fail to qualify as
a REMIC at any time that the Certificates are outstanding.
Person: Any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Prepayment Interest Shortfall: With respect to any Distribution Date, for each
Mortgage Loan that was the subject of a Principal Prepayment in full or in part
during the related Prepayment Period and that the related Servicer applied to
reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding calendar month, an amount equal to
interest at the applicable Mortgage Loan Remittance Rate on the amount of such
Principal Prepayment for the number of days commencing on the date on which the
prepayment is applied and ending on the last day of the calendar month preceding
such Distribution Date.
Prepayment Period: With respect to any Distribution Date and Servicer, the
calendar month preceding the month in which the Distribution Date occurs, or
such other period as set forth in the related Servicing Agreement.
Prepayment Premium: With respect to a Mortgage Loan, the prepayment charge or
penalty interest required to be paid by the Mortgagor in connection with a
prepayment of the related Mortgage Loan, as provided in the related Mortgage
Note or Mortgage, and as specified on the Mortgage Loan Schedule.
Primary Mortgage Insurance Policy: Each policy of primary mortgage guaranty
insurance (including any LPMI Policy) or any replacement policy therefor with
respect to any Mortgage Loan, in each case issued by an insurer acceptable to
Xxxxxx Xxx or Xxxxxxx Mac.
Principal Prepayment: Any Mortgagor payment of principal or other recovery of
principal on a Mortgage Loan that is recognized as having been received or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the related Servicing Agreement, as applicable.
Private Certificate: Any of the Class I-C-1, Class I-C-2, Class I-P, Class II-C,
Class II-P, Class R or Class RX, which Certificates that are not registered
under the Securities Act.
Prospectus: The prospectus supplement, dated January 24, 2007, together with the
accompanying prospectus dated July 20, 2006, relating to the Offered
Certificates.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted for a Deleted
Mortgage Loan which must, on the date of such substitution, meet the following
criteria:
62
(a) have a Stated Principal Balance, after deduction of all Scheduled
Monthly Payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Stated Principal Balance), not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan;
(b) have a Mortgage Rate not less than, and not more than two
percentage points (2%) greater than, the Mortgage Rate of the Deleted
Mortgage Loan;
(c) have a remaining term to maturity not greater than and not more
than one year less than that of the Deleted Mortgage Loan;
(d) comply with each representation and warranty set forth in Section
2.07;
(e) be of the same type as the Deleted Mortgage Loan;
(f) have a Gross Margin not less than that of the Deleted Mortgage
Loan, if the Deleted Mortgage Loan was an Adjustable Rate Mortgage Loan;
(g) have at least the same lien priority as the lien priority of the
Deleted Mortgage Loan;
(h) have the same Index as the Deleted Mortgage Loan;
(i) have a credit score not less than that of the Deleted Mortgage
Loan;
(j) have an LTV not greater than that of the Deleted Mortgage Loan;
(k) have a credit grade not lower in quality than that of the Deleted
Mortgage Loan.
Rating Agency: Each of Xxxxx'x and S&P.
Realized Loss: With respect to any (1) Liquidated Mortgage Loan, an amount (not
less than zero or more than the Stated Principal Balance of the Mortgage Loan)
as of the date of such liquidation, equal to (a) the Stated Principal Balance of
the Liquidated Mortgage Loan as of the date of such liquidation, plus (b)
interest on the Stated Principal Balance of such Liquidated Mortgage Loan at the
Adjusted Net Mortgage Rate from the Due Date as to which interest was last paid
or advanced (and not reimbursed) to Certificateholders up to the Due Date in the
month in which Liquidation Proceeds related to such Mortgage Loan are required
to be distributed, minus (c) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred (to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan), (2) Mortgage Loan which has become the subject of a
Deficient Valuation, if the principal amount due under the related Mortgage Note
has been reduced, the difference between the principal balance of the Mortgage
Loan outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation and (3)
Mortgage Loan which has become the subject of a Debt Service Reduction, the
amount, if any, by which the principal portion of the related Scheduled Monthly
Payment has been reduced.
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Record Date: As to any Distribution Date and with respect to all Certificates
(other than the Class C, Class P, Class R and the Class RX Certificates), the
last Business Day preceding such Distribution Date. With respect to the Class C,
Class P, Class R and Class RX Certificates, the last Business Day of the
calendar month preceding the month in which the Distribution Date occurs.
Regular Interest: A "regular interest" in a REMIC within the meaning of Section
860G(a)(1) of the Code.
Regulation AB: Subpart 229.1100 Asset Backed Securities (Regulation AB), 17
C.F.R. xx.xx. 229.1110-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Reinvestment Agreement: A guaranteed reinvestment agreement from a bank,
insurance company or other corporation or entity organized under the laws of the
United States or any state thereof under which no payments are subject to any
withholding tax or, if subject to withholding tax imposed by any jurisdiction,
the obligor thereunder is required to make "gross up" payments that cover the
full amount of any such withholding tax on an after-tax basis; provided that
such agreement provides that it is terminable by the purchaser, without premium
or penalty, in the event that the rating assigned to such agreement by any
Rating Agency is at any time lower than the rating required pursuant to the
terms of this Agreement to be assigned to such agreement in order to permit the
purchase thereof.
Relevant Servicing Criteria: The Servicing Criteria applicable to the various
parties, as set forth on Exhibit 1122 attached hereto. For clarification
purposes, multiple parties can have responsibility for the same Relevant
Servicing Criteria. With respect to a Servicing Function Participant engaged by
the Master Servicer, the Securities Administrator or the Custodian, the term
"Relevant Servicing Criteria" may refer to a portion of the Relevant Servicing
Criteria applicable to such parties.
Relief Act: The Servicemembers Civil Relief Act, as such may be amended from
time to time, or any similar state or local laws.
Relief Act Reductions: With respect to any Distribution Date and any Mortgage
Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (a) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (b) interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC: A "real estate mortgage investment conduit" within the meaning of Section
860D of the Code.
REMIC I Regular Interests: REMIC I Regular Interest I-1-A through REMIC I
Regular Interest I-84-B, as designated in the Preliminary Statement. Each such
interest represents the beneficial ownership interests in REMIC I as a Regular
Interest in REMIC I. Each REMIC I Regular Interest shall accrue interest at the
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related Uncertificated REMIC I Pass-Through Rate in effect from time to time,
and shall be entitled to principal, if any, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance as
set forth in the Preliminary Statement hereto.
REMIC II Interest Loss Allocation Amount: With respect to any Distribution Date,
an amount (subject to adjustment based on the actual number of days elapsed in
the respective Accrual Periods for the indicated REMIC II Regular Interests for
such Distribution Date) equal to (a) the product of (i) the aggregate Stated
Principal Balance of the Group I Mortgage Loans and REO Properties then
outstanding and (ii) the Uncertificated REMIC II Pass-Through Rate for REMIC II
Regular Interest I-LTAA minus the Group I Marker Rate, divided by (b) 12.
REMIC II Overcollateralized Amount: With respect to any date of determination,
(i) 1.0% of the aggregate Uncertificated Balance of the REMIC II Regular
Interests (other than REMIC II Regular Interest I-LTIO) minus (ii) the aggregate
Uncertificated Balance of the Corresponding REMIC II Marker Interests and REMIC
II Regular Interest I-LTP in each case as of such date of determination.
REMIC II Overcollateralization Target Amount: 1.0% of the Group I Target
Overcollateralization Amount.
REMIC II Principal Loss Allocation Amount: With respect to any Distribution
Date, an amount equal to the product of (i) aggregate Stated Principal Balance
of the Mortgage Loans and REO Properties then outstanding and (ii) one minus a
fraction, the numerator of which is two times the aggregate Uncertificated
Balance of the Corresponding REMIC II Marker Interests and REMIC II Regular
Interest I-LTZZ and the denominator of which is the aggregate Uncertificated
Balance of the Corresponding REMIC II Marker Interests.
REMIC II Regular Interests: REMIC II Regular Interest I-LTAA, REMIC II Regular
Interest I-LTA-1, REMIC II Regular Interest I-LTA-2, REMIC II Regular Interest
I-LTB-1, REMIC II Regular Interest I-LTB-2, REMIC II Regular Interest I-LTB-3,
REMIC II Regular Interest I-LTB-4, REMIC II Regular Interest I-LTP, REMIC II
Regular Interest I-LTR and REMIC II Regular Interest I-LTIO, as designated in
the Preliminary Statement. Each such interest represents the beneficial
ownership interests in REMIC II as a Regular Interest in REMIC II. Each REMIC II
Regular Interest shall accrue interest at the related Uncertificated REMIC II
Pass-Through Rate in effect from time to time, and (other than REMIC II Regular
Interest I-LTIO) shall be entitled to principal subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
REMIC III Regular Interests: Class I-A-1 REMIC III Regular Interest, Class I-A-2
REMIC III Regular Interest, Class I-B-1 REMIC III Regular Interest, Class I-B-2
REMIC III Regular Interest, Class I-B-3 REMIC III Regular Interest, Class I-B-4
REMIC III Regular Interest, Class I-C-1 REMIC III Regular Interest, Class I-P
REMIC III Regular Interest and Class I-Swap-IO REMIC III Regular Interest, as
designated in the Preliminary Statement. Each such interest represents the
beneficial ownership interests in REMIC III as a Regular Interest in REMIC III.
Each REMIC III Regular Interest shall accrue interest at the related
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Uncertificated REMIC III Pass-Through Rate in effect from time to time, and
(other than Class I-Swap-IO REMIC REMIC III Regular Interest) shall be entitled
to principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC A1 Regular Interests: REMIC A1 Regular Interest II-30 and REMIC A1 Regular
Interest II-40, as designated in the Preliminary Statement. Each such interest
represents the beneficial ownership interests in REMIC A1 as a Regular Interest
in REMIC A1. Each REMIC A1 Regular Interest shall accrue interest at the related
Uncertificated REMIC A1 Pass-Through Rate in effect from time to time, and shall
be entitled to principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Balance as set forth in the
Preliminary Statement hereto.
REMIC A2 Interest Loss Allocation Amount: With respect to any Distribution Date,
an amount (subject to adjustment based on the actual number of days elapsed in
the respective Accrual Periods for the indicated REMIC A2 Regular Interests for
such Distribution Date) equal to (a) the product of (i) the aggregate Stated
Principal Balance of the Group II Mortgage Loans and REO Properties then
outstanding and (ii) the Uncertificated REMIC A2 Pass-Through Rate for REMIC A2
Regular Interest II-LTAA minus the Group II Marker Rate, divided by (b) 12.
REMIC A2 Overcollateralized Amount: With respect to any date of determination,
(i) 1.0% of the aggregate Uncertificated Balance of the Uncertificated REMIC A2
Regular Interests (other than REMIC A2 Regular Interest II-LTF) minus (ii) the
aggregate Uncertificated Balance of the Corresponding REMIC A2 Marker Interests
and REMIC A2 Regular Interest II-LTP in each case as of such date of
determination.
REMIC A2 Overcollateralization Target Amount: 1.0% of the Group II Target
Overcollateralization Amount.
REMIC A2 Principal Loss Allocation Amount: With respect to any Distribution
Date, an amount equal to the product of (i) aggregate Stated Principal Balance
of the Mortgage Loans and REO Properties then outstanding and (ii) one minus a
fraction, the numerator of which is two times the aggregate Uncertificated
Balance of the Corresponding REMIC A2 Marker Interests and REMIC A2 Regular
Interest II-LTZZ and the denominator of which is the aggregate Uncertificated
Balance of the Corresponding REMIC A2 Marker Interests.
REMIC A2 Regular Interests: REMIC A2 Regular Interest II-LTAA, REMIC A2 Regular
Interest II-LTA-1, REMIC A2 Regular Interest II-LTA-2, REMIC A1 Regular Interest
II-LTA-3, REMIC A2 Regular Interest II-LTB-1, REMIC A2 Regular Interest
II-LTB-2, REMIC A2 Regular Interest II-LTB-3, REMIC A2 Regular Interest
II-LTB-4, REMIC A2 Regular Interest II-LTB-5, REMIC A2 Regular Interest
II-LTB-6, REMIC A2 Regular Interest II-LTP, REMIC A2 Regular Interest II-LTF and
REMIC A2 Regular Interest II-LTR. Each such interest represents the beneficial
ownership interests in REMIC A2 as a Regular Interest in REMIC A2. Each REMIC A2
Regular Interest shall accrue interest at the related Uncertificated REMIC A2
Pass-Through Rate in effect from time to time, and (other than REMIC A2 Regular
Interest II-LTF) shall be entitled to principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
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REMIC A3 Regular Interests: Class II-A-1 REMIC A3 Regular Interest, Class II-A-2
REMIC A3 Regular Interest, Class II-A-3 REMIC A3 Regular Interest, Class II-B-1
REMIC A3 Regular Interest, Class II-B-2 REMIC A3 Regular Interest, Class II-B-3
REMIC A3 Regular Interest, Class II-B-4 REMIC A3 Regular Interest, Class II-B-5
REMIC A3 Regular Interest, Class II-B-6 REMIC A3 Regular Interest, Class II-F
REMIC A3 Regular Interest, Class II-P REMIC A3 Regular Interest and Class II-C
REMIC A3 Regular Interest. Each such interest represents the beneficial
ownership interests in REMIC A3 as a Regular Interest in REMIC A3. Each REMIC A3
Regular Interest shall accrue interest at the related Uncertificated REMIC A3
Pass-Through Rate in effect from time to time, and (other than Class II-F REMIC
A3 Regular Interest) shall be entitled to principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
REMIC Provisions: Provisions of the federal income tax law relating to real
estate mortgage investment conduits, which appear at Sections 860A through 860G
of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REMIC Regular Interest: Any of the REMIC I Regular Interests, REMIC II Regular
Interests, REMIC III Regular Interests, REMIC A1 Regular Interests, REMIC A2
Regular Interests, REMIC A3 Regular Interests, Class I-B-4 REMIC IV Regular
Interest, Class I-C-1 REMIC V Regular Interest, Class I-P REMIC VI Regular
Interest, Class I-Swap-IO REMIC VII Regular Interest, Class II-B-6 REMIC A4
Regular Interest, Class II-C REMIC A5 Regular Interest, Class II-F REMIC A5
Regular Interest and Class II-P REMIC A6 Regular Interest.
REO Disposition: The sale or other disposition of REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO Property
pursuant to the applicable Servicing Agreement.
REO Property: A Mortgaged Property acquired by a Servicer on behalf of the
Issuing Entity through foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Reportable Event: As defined in Section 4.05(a)(iii).
Repurchase Price: With respect to any Mortgage Loan required to be purchased
pursuant to this Agreement (other than pursuant to Section 11.01), an amount
equal to the sum of (a) 100% of the Stated Principal Balance of the Mortgage
Loan on the date of such purchase, (b) accrued interest thereon at the
applicable Mortgage Rate from the date through which interest was last paid by
the Mortgagor to the Due Date in the month following the month in which the
Repurchase Price is to be distributed to the Certificateholders, (c) any
unreimbursed Advances and (d) any costs and damages incurred in connection with
the violation by such Mortgage Loan of any predatory or anti-abusive lending
law.
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Request for Release: The Request for Release submitted by the related Servicer
to the Trustee or the Custodian on behalf of the Trustee, in the form of Exhibit
D or in the form attached as an exhibit to the Custodial Agreement.
Reserve Account: Each trust account created and maintained by the Securities
Administrator pursuant to Section 8.02. The Reserve Accounts shall not be assets
of any REMIC formed under this Agreement.
Residual Certificates: The Class R Certificates and the Class RX Certificates.
Residual Interest: The sole class of "residual interests" in a REMIC within the
meaning of Section 860G(a)(2) of the Code.
Responsible Officer: With respect to:
(a) the Trustee, any managing director, any director, vice president, any
assistant vice president, any associate, any assistant secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers who at such time shall be
officers to whom, with respect to a particular matter, the matter is referred
because of the officer's knowledge of and familiarity with the particular
subject and who has direct responsibility for the administration of this
Agreement;
(b) the Securities Administrator, any vice president, any managing
director, any director, any associate, any assistant vice president, any
assistant secretary, any trust officer or any other officer or employee of the
Securities Administrator customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with respect
to a particular matter, such matter is referred because of such officer's or
employee's knowledge of and familiarity with the particular subject and in each
case who shall have direct responsibility for the administration of this
Agreement; and
(c) the Master Servicer, any vice president, any managing director, any
director, any associate, any assistant vice president, any assistant secretary,
any trust officer or any other officer or employee of the Master Servicer
customarily performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter, such
matter is referred because of such officer's or employee's knowledge of and
familiarity with the particular subject and in each case who shall have direct
responsibility for the administration of this Agreement.
Rolling Three Month Delinquency Rate: With respect to any Distribution Date, the
average of the Delinquency Rates for each of the three (or a shorter period, in
the case of the first and second Distribution Dates) immediately preceding Due
Periods.
Rule 144A Letter: As defined in Section 9.02.
S&P: Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc.
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Xxxxxxxx-Xxxxx Act: The Xxxxxxxx-Xxxxx Act of 2002, as amended from time to
time, and the rules and regulations of the Commission promulgated thereunder
(including any interpretations thereof by the Commission's staff).
Xxxxxxxx-Xxxxx Certification: A written certification signed by an officer of
the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act of 2002, as
amended from time to time, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d),
as in effect from time to time; provided that if, after the Closing Date (a) the
Xxxxxxxx-Xxxxx Act of 2002 is amended, (b) the Rules referred to in clause (ii)
are modified or superseded by any subsequent statement, rule or regulation of
the Commission or any statement of a division thereof, or (c) any future
releases, rules and regulations are published by the Commission from time to
time pursuant to the Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects
the form or substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous that then form of the required certification as of the
Closing Date, the Xxxxxxxx-Xxxxx Certification shall be as agreed to by the
Master Servicer, the Depositor and the Seller following a negotiation in good
faith to determine how to comply with any such new requirements.
Scheduled Monthly Payment: Each scheduled payment of principal and interest (or
of interest only, if applicable) to be paid by the Mortgagor on a Mortgage Loan,
as reduced (except where otherwise specified herein) by the amount of any
related Debt Service Reduction or pursuant to the Relief Act (excluding all
amounts of principal and interest that were due on or before the Cut-off Date
whenever received) and, in the case of an REO Property, an amount equivalent to
the Scheduled Monthly Payment that would have been due on the related Mortgage
Loan if such Mortgage Loan had remained in existence.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
Securities Administrator: Xxxxx Fargo Bank, N.A., or any successor or assigns in
its capacity as Securities Administrator under this Agreement.
Seller: Maia Mortgage Finance Statutory Trust, or any successor.
Servicer: Any of Washington Mutual Bank and IndyMac Bank, F.S.B., and their
successors in interest or assigns or any successor to the Servicers under the
Servicing Agreements.
Servicer Event of Default: Any one of the conditions or circumstances enumerated
in the applicable Servicing Agreement.
Servicer Remittance Date: The day in each calendar month on which each Servicer
is required to remit payments to the Distribution Account, as provided in the
related Servicing Agreement.
Servicer Report: The reports provided by each Servicer to the Master Servicer
and the Securities Administrator pursuant to the related Servicing Agreement.
Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses (including reasonable attorneys' fees and disbursements)
other than Monthly Advances incurred prior to, on or after the Cut-off Date in
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the performance by each Servicer of its servicing obligations, including, but
not limited to, the cost of (a) the inspection, maintenance, preservation,
restoration and protection of any Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, in respect of a particular
Mortgage Loan, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS(R)
System, (c) the management (including reasonable fees in connection therewith)
and liquidation of any REO Property, (d) compliance with the obligations under
that applicable Servicing Agreement and (e) obtaining any legal documentation
required to be included in the Mortgage File and/or correcting any outstanding
title issues (i.e., any lien or encumbrance on the Mortgaged Property that
prevents the effective enforcement of the intended lien position) reasonably
necessary for each Servicer to perform its obligations under this Agreement.
Servicing Advances also include any reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by each Servicer in connection with
executing and recording instruments of satisfaction, deeds of reconveyance or an
Assignment of Mortgage to the extent not recovered from the Mortgagor or
otherwise payable under this Agreement.
Servicing Agreement: Any of the following agreements:
(a) That certain Servicing Agreement, dated as of November 1, 2006 by
and between Washington Mutual Bank, as servicer, and the Sponsor, Mercury
Mortgage Finance Statutory Trust and the Seller, as purchasers, as amended
by the Reconstituted Servicing Agreement dated as of January 25, 2007, by
and among Washington Mutual Bank, the Seller, the Depositor, and Xxxxx
Fargo Bank, N.A. and acknowledged by the Trustee; and
(b) The Flow Sale and Servicing Agreement dated as of April 21, 2006
by and between IndyMac Bank, F.S.B. as the company and Luminent Mortgage
Capital, Inc., Mercury Mortgage Finance Statutory Trust and the Seller as
purchasers, as amended by the Reconstituted Servicing Agreement dated as of
January 25, 2007 by and between IndyMac Bank, F.S.B., the Depositor, the
Seller and Xxxxx Fargo Bank, N.A. (and acknowledged by the Trustee).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan and each Servicer, the amount
of the annual fee payable on account of servicing, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the applicable
Servicing Fee Rate and (b) the Stated Principal Balance of such Mortgage Loan as
of the first day of the related Due Period. The Servicing Fee is payable solely
from the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds) of such
Scheduled Monthly Payment collected by the Servicer, or as otherwise provided
under the applicable Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan serviced by Washington
Mutual Bank, the rate set forth in the Mortgage Loan Schedule. With respect to
the Mortgage Loans serviced by IndyMac Bank, F.S.B., 0.375% per annum.
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Servicing File: With respect to each Mortgage Loan, the file retained by each
Servicer consisting of originals of all documents in the Mortgage File which are
not delivered to the Custodian and copies of the Mortgage Loan Documents, the
originals of which are delivered to the Custodian on behalf of the Trustee.
Servicing Function Participant: Any Subservicer or Subcontractor of a Servicer,
the Master Servicer, the Trustee, the Custodian or the Securities Administrator,
respectively.
Servicing Officer: Any officer of a Servicer involved in or responsible for the
administration and servicing of the Mortgage Loans whose name appears on a list
of servicing officers furnished by each Servicer on the Closing Date to the
Master Servicer upon request, as such list may from time to time be amended.
Sponsor: Luminent Mortgage Capital, Inc.
Startup Day: As defined in Section 12.01(b) hereof.
Stated Principal Balance: With respect to any Mortgage Loan as of any date of
determination, outstanding principal balance as of the Cut-off Date, after
giving effect to the principal portion of any Scheduled Monthly Payments due on
or before such date, whether or not received, increased by any Deferred Interest
in respect of such Mortgage Loan on or prior to such date of determination and
reduced by the sum of (a) the principal portion of all Scheduled Monthly
Payments due on or before the Due Date in the Due Period immediately preceding
such date of determination, whether or not received, and (b) all amounts
allocable to unscheduled principal payments received on or before the last day
of the Due Period immediately preceding such date of determination.
Subcontractor: Any vendor, subcontractor or other Person that is not responsible
for the overall servicing (as servicing is commonly understood by participants
in the mortgage-backed securities market) of the Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to the Mortgage Loans under the direction or authority of a Servicer or
a Subservicer, the Master Servicer, the Trustee, the Custodian or the Securities
Administrator.
Subsequent Recovery: Any amount (net of reimbursable expenses) received on a
Mortgage Loan subsequent to such Mortgage Loan being determined to be a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior month.
Subservicer: Any Person that services the Mortgage Loans on behalf of any
Servicer or any Subcontractor and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the related
Servicer under this Agreement or the applicable Servicing Agreement that are
identified in Item 1122(d) of Regulation AB.
Substituting Party: As defined in Section 2.10(a).
Substitution Adjustment Amount: As defined in Section 2.10(c).
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Supplemental Interest Trust: The trust created pursuant to Section 8.04 and
designated as the "Supplemental Interest Trust," consisting of the Swap
Agreement, Cap Agreement, the Supplemental Interest Trust Trustee's rights under
the Swap Agreement and Cap Agreement and the Swap Account and the Cap Account.
The Supplemental Interest Trust is not an asset of any REMIC created hereunder.
Supplemental Interest Trust Trustee: The Securities Administrator or any
successor Supplemental Interest Trust Trustee appointed as herein provided.
Swap Account: The Eligible Account created and maintained pursuant to Section
8.04.
Swap Agreement: The long-form Swap Confirmation dated as of January 25, 2007
between the Swap Provider and the Supplemental Interest Trust Trustee, the form
of which is attached hereto as Exhibit N.
Swap LIBOR: As to any Distribution Date, LIBOR, as determined by the Swap
Provider pursuant to the Swap Agreement with respect to such Distribution Date.
Swap Provider: The Royal Bank of Scotland plc.
Swap Termination Payment: Any payment payable by the Supplemental Interest Trust
or the Swap Provider upon termination of the Swap Agreement as a result of an
Event of Default (as defined in the Swap Agreement) or a Termination Event (as
defined in the Swap Agreement).
Swap Provider Trigger Event: An event under the Swap Agreement where the Swap
Provider is the defaulting party or sole Affected Party (as defined in the Swap
Agreement).
Tax Matters Person: The person designated as "tax matters person" in the manner
provided under Treasury regulation ss. 1.860F-4(d) and Treasury regulation ss.
301.6231(a)(7)-1. Initially, the Tax Matters Person for REMICs I, II, III, A1,
A2 and A3 shall be the Holder of the Class R Certificates, and the Tax Matters
Person for REMICs IV, V, VI, VII, A4, A5 and A6 shall be the Holder of the Class
RX Certificates. The Securities Administrator will be appointed as agent of each
such Tax Matters Person pursuant to Section 12.01(k) herein unless otherwise
designated.
Termination Price: As defined in Section 11.01.
Triad Policy: Each of the LMPI Policies issued by Triad Insurance Guaranty
Corporation with respect to the Commitment Letters attached as Exhibit O.
Triad Premium: With respect to the Triad Policies and any Distribution Date, an
amount equal to the product of (a) (i) 0.36%, with respect to the Group I
Mortgage Loans, (ii) 0.48%, with respect to the Group II Mortgage Loans in each
case multiplied by (b) the Stated Principal Balance of the covered Mortgage
Loans as of the end of the calendar month preceding such Distribution Date, as
more fully set forth in the applicable Triad Policy.
Trust Fund: As defined in Section 2.06.
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Trustee: HSBC Bank USA, National Association and, if a successor trustee is
appointed hereunder, such successor.
Trust REMIC: Each REMIC created under the terms of this Agreement.
UCC: The Uniform Commercial Code as enacted in the relevant jurisdiction.
Uncertificated Accrued Interest: With respect to the Class I-C-1 REMIC III
Regular Interest on each Distribution Date, an amount equal to one month's
interest at its Pass-Through Rate on its Notional Amount. With respect to the
Class II-C REMIC A3 Regular Interest on each Distribution Date, an amount equal
to one month's interest at its Pass-Through Rate on its Notional Amount.
With respect to each other interest-bearing REMIC Regular Interest (other
than the Pass-Through Regular Interests) for any Distribution Date, one month's
interest at the related Pass-Through Rate applicable to such REMIC Regular
Interest for such Distribution Date, accrued on the Uncertificated Balance
thereof immediately prior to such Distribution Date.
In each case, Uncertificated Accrued Interest will be reduced by any Net
Prepayment Interest Shortfalls and any Relief Act Reductions as provided in
Section 8.07. With respect to the Group II Regular Interests, Uncertificated
Accrued Interest will be reduced by any Group II Allocated Net Deferred Interest
as provided in Section 8.07. In addition, Uncertificated Accrued Interest with
respect to each Distribution Date, as to any REMIC Regular Interest, shall be
reduced by the interest portions of Realized Losses, if any, allocated to such
REMIC Regular Interest.
The Pass-Through Regular Interests shall be entitled to amounts in
accordance with their respective Pass-Through Rates.
Uncertificated Balance: With respect to the Class I-C-1 REMIC III Regular
Interest an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Balance of the REMIC II Regular Interests (other than REMIC II
Regular Interest I-LTIO) over (B) the then aggregate Certificate Principal
Balance of the Class I Certificates and Class I-P Certificates plus one-half of
the aggregate Certificate Principal Balance of the Class R and Class RX
Certificates then outstanding. With respect to the Class II-C REMIC A3 Regular
Interest an amount equal to the excess, if any, of (A) the then aggregate Stated
Principal Balance of the Group II Mortgage Loans over (B) the then aggregate
Certificate Principal Balance of the Class II Certificates and Class II-P
Certificates plus one-half of the aggregate Certificate Principal Balance of the
Class R and Class RX Certificates then outstanding.
With respect to REMIC II Regular Interest I-LTIO, Class I-Swap-IO REMIC III
Regular Interest, Class I-Swap-IO REMIC VII Regular Interest, Class II-LTF REMIC
A2 Regular Interest, Class II-F REMIC A3 Regular Interest and Class II-F REMIC
A5 Regular Interest, the respective Uncertificated Notional Amount.
With respect to each other REMIC Regular Interest, the amount of such REMIC
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Balance of each such REMIC Regular Interest shall equal
the amount set forth in the Preliminary Statement hereto as its initial
73
Uncertificated Balance. On each Distribution Date, the Uncertificated Balance of
each such REMIC Regular Interest shall be reduced by all distributions of
principal made on such REMIC Regular Interest on such Distribution Date and, if
and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses. The Uncertificated Balance of REMIC II
Regular Interest I-LTZZ shall be increased by interest deferrals as provided in
Section 8.07. The Uncertificated Balance of REMIC A2 Regular Interest II-LTZZ
shall be increased by interest deferrals as provided in Section 8.07. The
Uncertificated Balance of the Group II Regular Interests will be increased by
the amount of Deferred Interest and/or Group II Allocated Net Deferred Interest
allocated to such REMIC Regular Interests as provided in Section 8.07. The
Uncertificated Balance of each REMIC Regular Interest shall never be less than
zero.
Uncertificated Notional Amount: With respect to REMIC A2 Regular Interest
II-LTF, an amount equal to Uncertificated Balance of REMIC X Regular Interest
II-40. With respect to the Class II-F REMIC A3 Regular Interest, an amount equal
to the Uncertificated Notional Amount of REMIC A2 Regular Interest II-LTF. With
respect to the Class II-F REMIC A5 Regular Interest, an amount equal to the
Uncertificated Notional Amount of the Class II-F REMIC A3 Regular Interest.
With respect to the REMIC II Regular Interest I-LTIO and each Distribution
Date listed below, the aggregate Uncertificated Balances of the REMIC I Regular
Interests ending with the designation "A" listed below:
Distribution
Date REMIC I Regular Interests
------------ -------------------------
1 I-1-A through X-00-X
0 X-0-X xxxxxxx X-00-X
0 X-0-X through X-00-X
0 X-0-X xxxxxxx X-00-X
0 X-0-X through X-00-X
0 X-0-X xxxxxxx X-00-X
0 X-0-X through X-00-X
0 X-0-X xxxxxxx X-00-X
0 X-0-X through I-84-A
10 I-10-A through I-84-A
11 I-11-A through I-84-A
12 I-12-A through I-84-A
13 I-13-A through I-84-A
14 I-14-A through I-84-A
15 I-15-A through I-84-A
16 I-16-A through I-84-A
17 I-17-A through I-84-A
18 I-18-A through I-84-A
19 I-19-A through I-84-A
20 I-20-A through I-84-A
21 I-21-A through I-84-A
74
Distribution
Date REMIC I Regular Interests
------------ -------------------------
22 I-22-A through I-84-A
23 I-23-A through I-84-A
24 I-24-A through I-84-A
25 I-25-A through I-84-A
26 I-26-A through I-84-A
27 I-27-A through I-84-A
28 I-28-A through I-84-A
29 I-29-A through I-84-A
30 I-30-A through I-84-A
31 I-31-A through I-84-A
32 I-32-A through I-84-A
33 I-33-A through I-84-A
34 I-34-A through I-84-A
35 I-35-A through I-84-A
36 I-36-A through I-84-A
37 I-37-A through I-84-A
38 I-38-A through I-84-A
39 I-39-A through I-84-A
40 I-40-A through I-84-A
41 I-41-A through I-84-A
42 I-42-A through I-84-A
43 I-43-A through I-84-A
44 I-44-A through I-84-A
45 I-45-A through I-84-A
46 I-46-A through I-84-A
47 I-47-A through I-84-A
48 I-48-A through I-84-A
49 I-49-A through I-84-A
50 I-50-A through I-84-A
51 I-51-A through I-84-A
52 I-52-A through I-84-A
53 I-53-A through I-84-A
54 I-54-A through I-84-A
55 I-55-A through I-84-A
56 I-56-A through I-84-A
57 I-57-A through I-84-A
58 I-58-A through I-84-A
59 I-59-A through I-84-A
60 I-60-A through I-84-A
61 I-61-A through I-84-A
62 I-62-A through I-84-A
63 I-63-A through I-84-A
64 I-64-A through I-84-A
75
Distribution
Date REMIC I Regular Interests
------------ -------------------------
65 I-65-A through I-84-A
66 I-66-A through I-84-A
67 I-67-A through I-84-A
68 I-68-A through I-84-A
69 I-69-A through I-84-A
70 I-70-A through I-84-A
71 I-71-A through I-84-A
72 I-72-A through I-84-A
73 I-73-A through I-84-A
74 I-74-A through I-84-A
75 I-75-A through I-84-A
76 I-76-A through I-84-A
77 I-77-A through I-84-A
78 I-78-A through I-84-A
79 I-79-A through I-84-A
80 I-80-A through I-84-A
81 I-81-A through I-84-A
82 I-82-A through I-84-A
83 I-83-A and I-84-A
84 I-84-A
thereafter $0.00
Uncertificated REMIC I Pass-Through Rate: With respect to each REMIC I Regular
Interest ending with the designation "A," a per annum rate equal to the weighted
average of the Group I Net Mortgage Rates of the Group I Mortgage Loans
multiplied by 2, subject to a maximum rate of the Fixed Payer Rate multiplied by
2. With respect to each REMIC I Regular Interest ending with the designation
"B," a per annum rate equal to the excess, if any, of (i) 2 multiplied by the
weighted average of the Group I Net Mortgage Rates of the Group I Mortgage Loans
over (ii) the Fixed Payer Rate multiplied by 2 (or 0.00% if there is no such
excess).
Uncertificated REMIC II Pass-Through Rate: With respect to REMIC II Regular
Interest I-LTAA, the Corresponding REMIC II Marker Interests, REMIC II Regular
Interest I-LTZZ, REMIC II Regular Interest I-LTP and REMIC II Regular Interest
I-LTR, a per annum rate (but not less than zero) equal to the weighted average
of: (x) with respect to each REMIC I Regular Interest ending with the
designation "B", the weighted average of the Uncertificated REMIC I Pass-Through
Rates for such REMIC I Regular Interests, weighted on the basis of the
Uncertificated Balances of such REMIC I Regular Interests for each such
Distribution Date and (y) with respect to REMIC I Regular Interests ending with
the designation "A", for each Distribution Date listed below, the weighted
average of the rates listed below for each such REMIC I Regular Interest listed
below, weighted on the basis of the Uncertificated Balances of each such REMIC I
Regular Interest for each such Distribution Date:
76
Distribution
Date REMIC I Regular Interest Rate
------------ ------------------------ --------------------------------------------------------
1 I-1-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
2 I-2-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A Uncertificated REMIC I Pass-Through Rate
3 I-3-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A and I-2-A Uncertificated REMIC I Pass-Through Rate
4 I-4-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-3-A Uncertificated REMIC I Pass-Through Rate
5 I-5-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-4-A Uncertificated REMIC I Pass-Through Rate
6 I-6-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-5-A Uncertificated REMIC I Pass-Through Rate
7 I-7-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-6-A Uncertificated REMIC I Pass-Through Rate
8 I-8-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-7-A Uncertificated REMIC I Pass-Through Rate
9 I-9-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-8-A Uncertificated REMIC I Pass-Through Rate
10 I-10-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-9-A Uncertificated REMIC I Pass-Through Rate
11 I-11-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-10-A Uncertificated REMIC I Pass-Through Rate
12 I-12-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-11-A Uncertificated REMIC I Pass-Through Rate
13 I-13-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-12-A Uncertificated REMIC I Pass-Through Rate
14 I-14-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-13-A Uncertificated REMIC I Pass-Through Rate
15 I-15-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-14-A Uncertificated REMIC I Pass-Through Rate
16 I-16-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-15-A Uncertificated REMIC I Pass-Through Rate
17 I-17-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-16-A Uncertificated REMIC I Pass-Through Rate
77
Distribution
Date REMIC I Regular Interest Rate
------------ ------------------------ --------------------------------------------------------
18 I-18-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-17-A Uncertificated REMIC I Pass-Through Rate
19 I-19-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-18-A Uncertificated REMIC I Pass-Through Rate
20 I-20-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-19-A Uncertificated REMIC I Pass-Through Rate
21 I-21-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-20-A Uncertificated REMIC I Pass-Through Rate
22 I-22-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-21-A Uncertificated REMIC I Pass-Through Rate
23 I-23-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-22-A Uncertificated REMIC I Pass-Through Rate
24 I-24-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-23-A Uncertificated REMIC I Pass-Through Rate
25 I-25-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-24-A Uncertificated REMIC I Pass-Through Rate
26 I-26-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-25-A Uncertificated REMIC I Pass-Through Rate
27 I-27-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-26-A Uncertificated REMIC I Pass-Through Rate
28 I-28-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-27-A Uncertificated REMIC I Pass-Through Rate
29 I-29-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-28-A Uncertificated REMIC I Pass-Through Rate
30 I-30-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-29-A Uncertificated REMIC I Pass-Through Rate
31 I-31-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-30-A Uncertificated REMIC I Pass-Through Rate
32 I-32-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-31-A Uncertificated REMIC I Pass-Through Rate
33 I-33-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-32-A Uncertificated REMIC I Pass-Through Rate
34 I-34-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-33-A Uncertificated REMIC I Pass-Through Rate
78
Distribution
Date REMIC I Regular Interest Rate
------------ ------------------------ --------------------------------------------------------
35 I-35-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-34-A Uncertificated REMIC I Pass-Through Rate
36 I-36-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-35-A Uncertificated REMIC I Pass-Through Rate
37 I-37-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-36-A Uncertificated REMIC I Pass-Through Rate
38 I-38-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-37-A Uncertificated REMIC I Pass-Through Rate
39 I-39-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-38-A Uncertificated REMIC I Pass-Through Rate
40 I-40-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-39-A Uncertificated REMIC I Pass-Through Rate
41 I-41-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-40-A Uncertificated REMIC I Pass-Through Rate
42 I-42-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-41-A Uncertificated REMIC I Pass-Through Rate
43 I-43-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-42-A Uncertificated REMIC I Pass-Through Rate
44 I-44-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-43-A Uncertificated REMIC I Pass-Through Rate
45 I-45-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-44-A Uncertificated REMIC I Pass-Through Rate
46 I-46-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-45-A Uncertificated REMIC I Pass-Through Rate
47 I-47-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-46-A Uncertificated REMIC I Pass-Through Rate
48 I-48-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-47-A Uncertificated REMIC I Pass-Through Rate
49 I-49-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-48-A Uncertificated REMIC I Pass-Through Rate
50 I-50-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-49-A Uncertificated REMIC I Pass-Through Rate
51 I-51-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-50-A Uncertificated REMIC I Pass-Through Rate
52 I-52-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
79
Distribution
Date REMIC I Regular Interest Rate
------------ ------------------------ --------------------------------------------------------
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-51-A Uncertificated REMIC I Pass-Through Rate
53 I-53-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-52-A Uncertificated REMIC I Pass-Through Rate
54 I-54-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-53-A Uncertificated REMIC I Pass-Through Rate
55 I-55-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-54-A Uncertificated REMIC I Pass-Through Rate
56 I-56-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-55-A Uncertificated REMIC I Pass-Through Rate
57 I-57-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-56-A Uncertificated REMIC I Pass-Through Rate
58 I-58-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-57-A Uncertificated REMIC I Pass-Through Rate
59 I-59-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-58-A Uncertificated REMIC I Pass-Through Rate
60 I-60-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-59-A Uncertificated REMIC I Pass-Through Rate
61 I-61-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-60-A Uncertificated REMIC I Pass-Through Rate
62 I-62-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-61-A Uncertificated REMIC I Pass-Through Rate
63 I-63-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-62-A Uncertificated REMIC I Pass-Through Rate
64 I-64-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-63-A Uncertificated REMIC I Pass-Through Rate
65 I-65-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-64-A Uncertificated REMIC I Pass-Through Rate
66 I-66-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-65-A Uncertificated REMIC I Pass-Through Rate
67 I-67-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-66-A Uncertificated REMIC I Pass-Through Rate
68 I-68-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-67-A Uncertificated REMIC I Pass-Through Rate
80
Distribution
Date REMIC I Regular Interest Rate
------------ ------------------------ --------------------------------------------------------
69 I-69-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-68-A Uncertificated REMIC I Pass-Through Rate
70 I-70-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-69-A Uncertificated REMIC I Pass-Through Rate
71 I-71-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-70-A Uncertificated REMIC I Pass-Through Rate
72 I-72-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-71-A Uncertificated REMIC I Pass-Through Rate
73 I-73-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-72-A Uncertificated REMIC I Pass-Through Rate
74 I-74-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-73-A Uncertificated REMIC I Pass-Through Rate
75 I-75-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-74-A Uncertificated REMIC I Pass-Through Rate
76 I-76-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-75-A Uncertificated REMIC I Pass-Through Rate
77 I-77-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-76-A Uncertificated REMIC I Pass-Through Rate
78 I-78-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-77-A Uncertificated REMIC I Pass-Through Rate
79 I-79-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-78-A Uncertificated REMIC I Pass-Through Rate
80 I-80-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-79-A Uncertificated REMIC I Pass-Through Rate
81 I-81-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-80-A Uncertificated REMIC I Pass-Through Rate
82 I-82-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-81-A Uncertificated REMIC I Pass-Through Rate
83 I-83-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
I-1-A through I-82-A Uncertificated REMIC I Pass-Through Rate
84 I-1-A through I-84-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC I Pass-Through Rate
With respect to REMIC II Regular Interest I-LTIO and (i) Distribution Dates
1 through 84, a per annum rate equal to the excess, if any, of (x) the weighted
average of the Uncertificated REMIC I Pass-Through Rates for REMIC I Regular
81
Interests including the designation "A," over (y) 2 times Swap LIBOR (or 0.00%
if there is no such excess) and (ii) thereafter, 0.00%.
Uncertificated REMIC III Pass-Through Rate: As set forth in the Preliminary
Statement.
Uncertificated REMIC A1 Pass-Through Rate: With respect to each REMIC A1 Regular
Interest, the weighted average of the Group II Net Mortgage Rates of the Group
II Mortgage Loans, calculated for this purpose without regard to clause (iv) of
the definition of Group II Net Mortgage Rate.
Uncertificated REMIC A2 Pass-Through Rate: With respect to REMIC A2 Regular
Interest II-LTAA, the Corresponding REMIC A2 Marker Interests, REMIC A2 Regular
Interest II-LTZZ, REMIC A2 Regular Interest II-LTP and REMIC A2 Regular Interest
II-LTR, (i) on any Distribution Date on or prior to the Distribution Date in
January 2017, a per annum rate equal to the weighted average of the
Uncertificated REMIC A1 Pass-Through Rates for the REMIC A1 Regular Interests,
or (ii) any Distribution Date thereafter, a per annum rate equal to the weighted
average of (x) the Uncertificated REMIC A1 Pass-Through Rate for REMIC A1
Regular Interest II-30 for such Distribution Date, and (y) the excess, if any,
of (A) the Uncertificated REMIC A1 Pass-Through Rate for REMIC A1 Regular
Interest II-40 for such Distribution Date over (B) 1.00% per annum, in each cash
weighted on the basis of the Uncertificated Balance of each such REMIC A1
Regular Interest for such Distribution Date.
With respect to REMIC A2 Regular Interest II-LTF, (i) for any Distribution
Date on or prior to the Distribution Date in January 2017, 0.00% and (ii) for
any Distribution thereafter, 1.00%.
Uncertificated REMIC A3 Pass-Through Rate: As set forth in the Preliminary
Statement.
Underwriter's Exemption: Any exemption listed in footnote 1 of, and amended by,
PTE 2002-41 at 67 Fed. Reg. 54487 (August 22, 2002), or any substantially
similar successor administrative exemption granted by the U.S. Department of
Labor.
Underwriting Guidelines: Those underwriting guidelines employed by the Seller
with respect to Mortgage Loans.
Unpaid Realized Loss Amount: For any Class of Certificates and any Distribution
Date, the excess of (a) the aggregate Realized Losses allocated to such Class
for such Distribution Date and all prior Distribution Dates over (y) the
cumulative amount of any Excess Cash Flow allocated to such Class in reduction
of such Unpaid Realized Loss Amount for all prior Distribution Dates.
U.S. Person: (a) A citizen or resident of the United States, (b) a corporation
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, including an entity treated as a
corporation for federal income tax purposes (c) a partnership (unless Treasury
regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a partnership for federal income tax purposes,
none of the interests in which are owned, directly or indirectly through one or
more intermediate entities, by a person that is not a U.S. Person within the
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meaning this paragraph, (d) an estate the income of which is includible in gross
income for United States federal income tax purposes, regardless of its source,
(e) a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United States
fiduciaries have the authority to control all substantial decisions of the trust
(or to the extent provided in applicable Treasury regulations, certain trusts in
existence on August 20, 1996 that are eligible to be treated as United States
persons).
Voting Interests: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. Voting Interests will be allocated 98% to
the Class I Certificates and Class II Certificates in proportion to the
Certificate Principal Balances of their respective Certificates on any
determination date. Voting Interests with respect to matters that affect only
the Class I Certificates, but not the Class II Certificates, or vice versa, will
be allocated 98% to the affected Class, in proportion to their respective
certificate principal balance. The remaining Voting Interests shall be allocated
0.25% to the Class R Certificates and 0.25% to the Class RX Certificates, and
0.50% to each of the Class I-C-1, Class I-C-2 and Class II-C Certificates.
SECTION 1.02 Calculations With Respect to the Mortgage Loans.
------------------------------------------------
Calculations required to be made pursuant to this Agreement with respect to
any Mortgage Loan in the Trust Fund shall be made based upon current information
as to the terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans provided by the Servicers to the Master
Servicer and the Securities Administrator. Payments and distributions to be made
by the Securities Administrator shall be based on information provided by the
Servicers. Neither the Trustee, the Master Servicer nor the Securities
Administrator shall be required to recompute, verify or recalculate the
information supplied to it by the Servicers.
SECTION 1.03 Calculations With Respect to Accrued Interest.
----------------------------------------------
All calculations of interest described herein with respect to any Class of
Certificates, other than Class I-C-1 Certificates and the Class II-C
Certificates, and the REMIC III Regular Interests (other than the Class I-C-1
REMIC III Regular Interest) and the REMIC A3 Regular Interests (other than the
Class II-C REMIC A3 Regular Interest), shall be made on the basis of an assumed
360-day year and the actual number of days in the related Accrual Period. The
Class I-C-1 Certificates and the Class II-C Certificates, the Class I-C-1 REMIC
III Regular Interest, the Class II-C REMIC A3 Regular Interests, the REMIC
Regular Interests (other than the REMIC III Regular Interests and the REMIC A3
Regular Interests) shall accrue interest on the basis of an assumed 360-day year
consisting of twelve 30-day months.
SECTION 1.04 Rules of Construction.
----------------------
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
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(c) the words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation;"
(d) the word "will" shall be construed to have the same meaning and effect
as the word "shall;"
(e) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein);
(f) any reference herein to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's permitted successors and
assigns or such Person's permitted successors in such capacity, as the case may
be; and
(g) all references in this instrument to designated "Sections," "clauses"
and other subdivisions are to the designated Sections, clauses and other
subdivisions of this instrument as originally executed, and the words "herein,"
"hereof," "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular Section, clause or other subdivision.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
SECTION 2.01 Conveyance of Mortgage Loans to the Depositor.
----------------------------------------------
On the Closing Date, in exchange for the Certificates or the net proceeds
thereof, the Seller does hereby sell, transfer, assign, or set over, deposit
with and otherwise convey without recourse (except as provided herein), and the
Depositor does hereby purchase, all right, title and interest of the Seller in
and to the Mortgage Loans listed on the Mortgage Loan Schedule, having a Cut-off
Date Balance as set forth in such Mortgage Loan Schedule; provided, however that
(i) the Seller does not convey to the Depositor the Seller's right to receive
amounts in excess of the Repurchase Price if a Mortgage Loan is repurchased by
an Originator; and (ii) the Seller only conveys Prepayment Premiums to the
extent that it acquired the rights thereto from the related Originator.
(a) The Depositor shall be entitled to (i) all Scheduled Monthly Payments
of principal due after the Cut-off Date, (ii) all other recoveries of principal
collected after the Cut-off Date (less scheduled payments of principal due on or
before the Cut-off Date and collected after the Cut-off Date), (iii) all
Scheduled Monthly Payments of interest due after the Cut-off Date (minus that
portion of any such payment which is allocable to the period prior to the
Cut-off Date) and (iv) all Prepayment Premiums to the extent conveyed. Scheduled
Monthly Payments prepaid with respect to a Due Date after the Cut-off Date shall
not be applied to the principal balance as of the Cut-off Date, but the Seller
shall remit any such prepaid amounts to the related Servicer for deposit into
the Custodial Account for the benefit of the Depositor.
(b) Concurrently with the execution and delivery of this Agreement, the
Seller hereby assigns to the Depositor all of its rights and interest (but none
of its obligations) under the Servicing Agreements and Mortgage Loan Purchase
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Agreements, including the representations and warranties made by the transferors
of Mortgage Loans to the Seller. The Depositor hereby accepts such assignment,
and shall be entitled to exercise all such rights of the Seller under the such
Agreements as if the Depositor had been a party to each such agreement.
(c) In the case of Mortgage Loans that have been prepaid in full prior to
the Closing Date, the Seller shall remit the amount so prepaid as part of the
Closing Date Deposit Amount. In addition, the Seller shall remit to the
Securities Administrator the remainder of the Closing Date Deposit Amount, if
any.
(d) Upon the sale of the Mortgage Loans, the ownership of each Mortgage
Note, the related Mortgage and the related Mortgage File shall vest immediately
in the Depositor, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or which come into the possession of the
Seller shall vest immediately in the Depositor and shall be retained and
maintained by the Seller, in trust, at the will of the Depositor and only in
such custodial capacity.
(e) The Seller shall deliver the Mortgage Loan Schedule, the Mortgage Loan
File and Mortgage Loan Documents to be purchased on the related Closing Date to
the Custodian at least three Business Days prior to such Closing Date.
SECTION 2.02 Conveyance of Mortgage Loans to the Issuing Entity.
---------------------------------------------------
(a) On the Closing Date, in exchange for the Certificates, the Depositor
does hereby sell, transfer, assign, set over, deposit with and otherwise convey
to the Trustee, for the benefit of the Certificateholders, without recourse
(except as otherwise provided herein), all right, title and interest of the
Depositor in and to the Mortgage Loans purchased by the Depositor from the
Seller.
(b) The Issuing Entity shall be entitled to all payments on the Mortgage
Loans as provided in Section 2.01(a).
(c) Concurrently with the execution and delivery of this Agreement, the
Depositor hereby assigns to the Issuing Entity all of its rights and interest
(but none of its obligations) under the Servicing Agreements and Mortgage Loan
Purchase Agreements, including the representations and warranties made by the
transferors of such Mortgage Loans to the Seller. The Issuing Entity hereby
accepts such assignment, and shall be entitled to exercise all such rights of
the Depositor under such Agreements as if the Issuing Entity had been a party to
each such agreement.
(d) Upon the issuance of the Certificates, the ownership of each Mortgage
Note, the related Mortgage and the related Mortgage File shall vest immediately
in the Issuing Entity, and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall vest immediately in the Issuing Entity and shall
be retained and maintained by the Seller, in trust, at the will of the Issuing
Entity and only in such custodial capacity.
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(e) In connection with such transfer and assignment of the Mortgage Loans,
the Depositor does hereby deliver to, and deposit with, or cause to be delivered
to and deposited with the Custodian, on behalf of the Trustee, for the benefit
of the Certificateholders, the Mortgage File with respect to each Mortgage Loan,
and the ownership of all records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Depositor
shall vest immediately in the Trustee for the benefit of the Certificateholders
and shall be retained and maintained by the Depositor, in trust, at the will of
the Trustee for the benefit of the Certificateholders and only in such custodial
capacity.
SECTION 2.03 Assignment of Mortgage Loans.
-----------------------------
(a) The Seller shall cause an Assignment of Mortgage with respect to each
Mortgage Loan (other than a MERS Designated Mortgage Loan) to be completed in
the form and substance acceptable for recording in the relevant jurisdiction,
such assignment shall either be in blank or be endorsed to "HSBC Bank USA,
National Association, as Trustee of Luminent Mortgage Trust 2007-1, Mortgage
Pass-Through Certificates, Series 2007-1," without recourse," on or prior to the
Closing Date. Except upon request of the applicable Servicer, the Assignments of
Mortgage need not be recorded.
(b) In connection with the assignment of any MERS Designated Mortgage Loan,
the Seller agrees that, on or prior to the Closing Date, the Seller will cause
the MERS(R) System to indicate that such Mortgage Loans have been assigned by
the Seller to the Depositor which has assigned such Mortgage Loans to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the code in the field that identifies the specific Trustee and the code in the
field "Pool Field" that identifies the series of the Certificates for which such
Mortgage Loans serve as collateral. The Seller further agrees that it will not,
and will not permit any Servicer to, and each of the Servicers and the Master
Servicer agrees that it will not, alter the codes referenced in this paragraph
with respect to any MERS Designated Mortgage Loan during the term of this
Agreement unless and until such MERS Designated Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
SECTION 2.04 Books and Records.
------------------
(a) To the extent provided in the Servicing Agreements: The contents of
each Servicing File are and shall be held in trust by the related Servicer for
the benefit of the Trustee on behalf of the Certificateholders. The related
Servicer shall take all necessary steps to ensure that the documents required to
be included in the Servicing File are complete and shall maintain the Servicing
File as required by this Agreement, Accepted Servicing Practices and applicable
law. Possession of each Servicing File by the related Servicer is at the will of
the Trustee for the sole purpose of servicing the related Mortgage Loan and such
retention and possession by the Seller is in a custodial capacity only. Each
Servicer shall release its custody of the contents of any Servicing File only in
accordance with written instructions from the Trustee, unless such release is
required as incidental to the Seller's servicing of the Mortgage Loans or is in
connection with the transfer of servicing or a repurchase of any Mortgage Loan.
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(b) To the extent provided in the Servicing Agreements: All original
documents relating to the Mortgage Loans that are not delivered to the
Custodian, to the extent delivered to the related Servicer, are and shall be
held by such Servicer in trust for the benefit of the Trustee on behalf of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian on behalf of the Trustee.
(c) To the extent provided in the Servicing Agreements: Upon and after a
sale of Mortgage Loans to the Trustee for the benefit of the Certificateholders,
all proceeds arising out of the Mortgage Loans, as provided in Section 2.01(a)
shall be received and held by the related Servicer in trust for the benefit of
the Trustee on behalf of the Certificateholders.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Servicer or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
SECTION 2.05 Review of Documentation.
------------------------
(a) On the Closing Date, the Custodian will execute and deliver to the
Depositor, the related Servicer and the Trustee an Initial Certification with
respect to the Mortgage Loans. Based on its review and examination, and only as
to the documents identified in the Initial Certification, the Custodian will
acknowledge that (i) such documents appear regular on their face and relate to
such Mortgage Loan and (ii) with respect to each MERS Designated Mortgage Loan,
the MERS number on the Mortgage Loan Schedule matches the MERS number on the
Mortgage for the related Mortgage File. The Custodian shall not be under any
duty or obligation to inspect, review or examine such documents, instruments,
Certificates or other papers to determine that the same are genuine,
enforceable, recordable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
(b) Within 180 days after the Closing Date, the Custodian will execute and
deliver to the Depositor, the Servicer, and the Trustee a Final Certification
with any applicable exceptions noted therein. The Custodian shall (i) determine
whether such documents are executed and endorsed, but shall be under no duty or
obligation to inspect, review or examine any such documents, instruments,
Certificates or other papers to determine that the same are valid, binding,
legally effective, properly endorsed, genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded or are in
recordable form or that they are other than what they purport to be on their
face and (ii) with respect to each MERS Designated Mortgage Loan, certify that
the related Mortgage File contains a MERS number. The Custodian shall not have
any responsibility for verifying the genuineness or the legal effectiveness of
or authority for any signatures of or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (a) above, the
Custodian discovers any document or documents constituting a part of a Mortgage
File is missing, does not appear regular on its face (i.e., is mutilated,
damaged, defaced, torn or otherwise physically altered) or appears to be
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, as
applicable (each, a "Material Defect"), the Custodian shall identify the
87
Mortgage Loan to which such Material Defect relates in the Final Certification.
Within 90 days of its receipt of such notice, the Seller shall be required to
cure such Material Defect (and, in such event, the Seller shall provide the
Trustee and the Custodian with an Officer's Certificate confirming that such
cure has been effected). If the Seller does not effect a cure within such 90-day
period, it shall repurchase the related Mortgage Loan from the Trust Fund at the
Repurchase Price; provided, however, that the Seller may, in lieu of
repurchasing a Mortgage Loan, substitute for such Mortgage Loan a Qualified
Substitute Mortgage Loan subject to the provisions of Section 2.10, provided
that such substitution occurs within two years of the Closing Date. The failure
of the Trustee to deliver, or cause the Custodian to deliver, the Final
Certification within 180 days from the Closing Date shall not affect or relieve
the Seller of its obligation to repurchase any Mortgage Loan pursuant to this
Section 2.05 or any other Section of this Agreement requiring the repurchase of
Mortgage Loans from the Trust Fund.
(d) Notwithstanding anything to the contrary contained herein, the parties
hereto acknowledge that the functions of the Trustee and the Custodian with
respect to the custody, acceptance, inspection and release of Mortgage Files,
including but not limited to certain insurance policies and documents
contemplated by this Agreement, and preparation and delivery of the
certifications described in Section 2.05 shall be performed by the Custodian
pursuant to the terms and conditions of the Custodial Agreement.
SECTION 2.06 Execution and Delivery of Certificates.
---------------------------------------
The Trustee acknowledges the transfer and assignment to it of the assets
conveyed and sold to it hereunder (the "Trust Fund"). Concurrently with such
transfer and assignment, the Securities Administrator has executed the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund, and, upon the written order of the
Depositor, has authenticated the same Certificates. The Trustee agrees to hold
the Trust Fund and exercise the rights referred to above for the benefit of all
present and future Holders of the Certificates and to perform the duties set
forth in this Agreement in accordance with the standard of care set forth
herein.
SECTION 2.07 Representations and Warranties of the Seller with Respect
----------------------------------------------------------
to the Mortgage Loans.
----------------------
(a) The Seller hereby makes the following representations and warranties to
the Trustee on behalf of the Certificateholders as of the Closing Date with
respect to the Mortgage Loans:
(i) Each Mortgage Loan at the time it was originated complied in all
material respects with applicable local, state, and federal laws, including, but
not limited to, all applicable predatory and abusive lending laws;
(ii) No Mortgage Loan is a "High Cost Loan" or "Covered Loan," as
applicable (as such terms are defined in the then current Standard & Poor's
LEVELS(R) Glossary, Appendix E, in effect as of the Closing Date);
(iii) No Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act;
88
(iv) As of the Cut-Off Date, no Mortgage Loan is more than 30 days
delinquent. The Seller has not waived any default, breach, violation or event of
acceleration, and the Seller has not taken any action to waive any default,
breach, violation or even of acceleration, with respect to any Mortgage Loan; in
addition, as of the Closing Date, no Mortgage Loan was in foreclosure, nor are
foreclosure proceedings imminent with respect to any Mortgage Loan;
(v) Each Mortgage Loan represents a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulations Section 1.860G-2(f)(2) that treats a defective obligation
as a qualified mortgage, or any substantially similar successor provision) and
applicable Treasury regulations promulgated thereunder.
(vi) With respect to each representation and warranty with respect to
any Mortgage Loan made by the Originators in the Mortgage Loan Purchase
Agreements that is made as of the related Closing Date (as defined in the
applicable Mortgage Loan Purchase Agreement), no event has occurred since the
related Closing Date (as defined in the applicable Mortgage Loan Purchase
Agreement) that would render such representations and warranties to be untrue in
any material respect as of the Closing Date.
(b) Upon discovery or receipt of written notice by any party that (i) the
Seller or an Originator has breached any representation or warranty (or, with
respect to representations and warranties made to the knowledge or best
knowledge of Seller, if the substance of the representation or warranty is
inaccurate notwithstanding the Seller's lack of knowledge, such inaccuracy shall
be deemed a breach of the applicable representation or warranty) in respect of a
Mortgage Loan that materially and adversely affects the value of such Mortgage
Loan or the interest therein of the Certificateholders, or (ii) any Mortgage
Loan does not constitute a "qualified mortgage" within the meaning of Section
860G(a)(3) and the related REMIC provisions of the Code, such party shall
promptly notify the Trustee in writing of such breach, and the Trustee (and the
Seller shall use its best efforts to enforce, and shall join the Trustee in
enforcing, any such obligation of any Originator) shall enforce the Seller's or
Originator's obligations hereunder and/or under any Mortgage Loan Purchase
Agreement, as applicable, to repurchase or, subject to Section 2.10, substitute
a Qualified Substitute Mortgage Loan for, the affected Mortgage Loan on or prior
to the Determination Date following the expiration of the 90-day period
following the earlier of the date on which the breach was discovered or notice
of the breach was received by the Trustee; provided, however, that, if such
breach cannot reasonably be cured within such 90-day period, if the Seller or
such Originator, as applicable, shall have commenced to cure such breach within
such 90-day period, the Seller or such Originator, as applicable, shall be
permitted to proceed thereafter diligently and expeditiously to cure the breach
within an additional 90-day period.
(c) Subject to the following sentence, it is understood and agreed that the
obligations of the Originator or the Seller to cure, repurchase or substitute
for any Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy available to the Trustee on behalf
of the Certificateholders and the Certificateholder against such party
respecting such omission, defect or breach. In addition to the cure, repurchase
and substitution obligations referenced in Section 2.07(c), in the event of a
breach of the Seller's representations and warranties contained in this
89
Agreement that occurs as a result of a High-Cost Home Loan in the Trust Fund,
the Seller shall indemnify the Trustee and hold it harmless against any
out-of-pocket losses, penalties, fines, forfeitures, reasonable and necessary
legal fees (including (without limitation) legal fees incurred in connection
with the enforcement of the Seller's indemnification obligation under this
Section 2.07) and related costs and expenses resulting from any claim, demand,
defense or assertion that is based on or grounded upon, or resulting from, such
breach.
(d) If the Seller is not a member of MERS at the time it repurchases a
Mortgage Loan and the Mortgage is registered on the MERS(R) System, the Trustee
shall cause the Seller, at the Seller's own expense and without any right of
reimbursement, to cause MERS to execute and deliver an assignment of the
Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and
to cause such Mortgage to be removed from registration on the MERS(R) System in
accordance with the MERS rules and regulations.
SECTION 2.08 Repurchase Obligation.
----------------------
The Originators of certain Mortgage Loans are obligated to repurchase such
Mortgage Loan if the related Mortgagor fails to make its Scheduled Monthly
Payment thereon within 30 days of the Due Date therefor, for the months of
December or January. The Seller or the Depositor shall advise the Trustee and
the Master Servicer of any Mortgage Loan that is to be repurchased because of
such an early payment default, and the Trustee shall enforce the Originator's
obligation to repurchase such Mortgage Loan. If the purchase price for the
Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement is greater than
the Repurchase Price, the difference shall be paid to the Seller. The Repurchase
Price for any Mortgage Loan repurchased pursuant to this Agreement shall be
deposited into the Distribution Account.
SECTION 2.09 Repurchase of Mortgage Loans.
-----------------------------
(a) The purchase price for any Mortgage Loan repurchased by the Seller
pursuant to this Agreement shall be the Repurchase Price for such Mortgage Loan,
provided that in the event that the Originator is obligated to repurchase a
Mortgage Loan, and the purchase price therefor pursuant to the Mortgage Loan
Purchase Agreement is greater than the Repurchase Price, the difference shall be
paid to the Seller. The Repurchase Price for any Mortgage Loan repurchased
pursuant to this Agreement shall be deposited into the Distribution Account.
(b) The Custodian, upon receipt of a Request for Release from the Seller
(which Request for Release shall include a certification by the Seller of the
repurchase and the remittance of the Repurchase Price to the Securities
Administrator for deposit into the Distribution Account), shall release to the
Seller the related Mortgage File. The Trustee or its authorized designee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as the Seller may furnish to the
Trustee or the Custodian and as shall be necessary to vest in such party any
Mortgage Loan released pursuant hereto. None of the Trustee, the Securities
Administrator, the Master Servicer or the Custodian shall have any
responsibility for determining the sufficiency of such assignment for its
intended purpose, and upon such release, the Trustee and the Custodian shall
have no further responsibility with regard to such Mortgage File.
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SECTION 2.10 Substitution of Mortgage Loans.
-------------------------------
(a) In lieu of repurchasing any such Mortgage Loan as provided above, the
Seller (as such, the "Substituting Party") may cause such Mortgage Loan to be
removed from the Trust Fund (in which case it shall become a "Deleted Mortgage
Loan") and substitute one or more Qualified Substitute Mortgage Loans in the
manner and subject to the limitations of this Section 2.10. Any substitution of
Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to
this Section 2.10 must be effected prior to the last Business Day that is within
two years after the Closing Date. As to any Deleted Mortgage Loan for which the
Substituting Party substitutes a Qualified Substitute Mortgage Loan or Loans,
such substitution shall be effected by delivering to the Custodian, for such
Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the assignment to the Substituting Party, and such other documents and
agreements, with all necessary endorsements thereon, together with an Officers'
Certificate stating that each such Qualified Substitute Mortgage Loan satisfies
the definition thereof and specifying the Substitution Adjustment Amount (as
described below), if any, in connection with such substitution. The Custodian
shall acknowledge receipt for such Qualified Substitute Mortgage Loan and,
within 45 days thereafter, shall review such Mortgage Files and deliver to the
Substituting Party, the Trustee and the Depositor, with respect to such
Qualified Substitute Mortgage Loans, a certification substantially in the form
of a revised Initial Certification, with any exceptions noted thereon. Within 90
days of the date of substitution, the Custodian shall deliver to the
Substituting Party, the Trustee and the Depositor a certification substantially
in the form of a revised Final Certification, with respect to such Qualified
Substitute Mortgage Loans, with any exceptions noted thereon. Scheduled Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall not be included as part of the Trust Fund and shall be
retained by the Substituting Party. For the month of substitution, payments to
the Certificateholders shall reflect the collections and recoveries in respect
of such Deleted Mortgage Loan in the related Due Period and the Substituting
Party shall thereafter be entitled to retain all amounts subsequently received
in respect of such Deleted Mortgage Loan. Upon such substitution, such Qualified
Substitute Mortgage Loan shall constitute part of the Trust Fund and shall be
subject in all respects to the terms of this Agreement as of the date of
substitution.
(b) The Depositor shall amend the related Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan and the substitution of the Qualified
Substitute Mortgage Loan or Loans and the Seller shall deliver the amended
Mortgage Loan Schedule to the Trustee, the Master Servicer, the Securities
Administrator, the Custodian and the Servicer. Upon such substitution, the
Qualified Substitute Mortgage Loan shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Qualified Substitute Mortgage Loan, as of the date of
substitution, the representations and warranties made pursuant to Section 2.07
with respect to such Mortgage Loan.
(c) For any month in which any Substituting Party substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Seller shall deposit the excess (each, a "Substitution Adjustment Amount"), if
any, by which the aggregate Stated Principal Balances of all such Deleted
Mortgage Loans exceeds the aggregate Stated Principal Balances of the Qualified
Substitute Mortgage Loans replacing such Deleted Mortgage Loans, together with
(i) amounts specified in clause (c) of the definition of Repurchase Price and
(ii) one month's interest on such excess amount at the applicable Net Mortgage
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Rate. On the date of such substitution, the Seller shall deliver or cause to be
delivered to the Securities Administrator for deposit in the Distribution
Account an amount equal to the related Substitution Adjustment Amount, if any,
and the Custodian, upon receipt of the related Qualified Substitute Mortgage
Loan or Loans and a Request for Release from the Seller, which includes a
written certification of the Seller of delivery of such amount to the Securities
Administrator, shall release to the Substituting Party the related Mortgage File
or Files. The Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as the
Substituting Party shall deliver to the Trustee with respect to any Deleted
Mortgage Loan to be released pursuant hereto.
(d) In addition, before any such substitution can take effect, the
Substituting Party shall obtain at its own expense and deliver to the Trustee an
Opinion of Counsel to the effect that such substitution (either specifically or
as a class of transactions) shall not cause (a) any federal tax to be imposed on
the Trust Fund, including without limitation, any federal tax imposed on
"prohibited transactions" under Section 860F(a)(l) of the Code or on
"contributions after the Startup Date" under Section 860G(d)(l) of the Code, or
(b) any REMIC created hereunder to fail to qualify as a REMIC at any time that
any Certificate is outstanding. If such Opinion of Counsel can not be delivered,
then such substitution may only be effected at such time as the required Opinion
of Counsel can be given.
SECTION 2.11 Granting Clause.
----------------
(a) It is intended that the conveyance of the Mortgage Loans by the Seller
to the Depositor and by the Depositor to the Trustee for the benefit of the
Certificateholders, as provided for in Sections 2.01 and 2.02, be construed as a
sale of the Mortgage Loans and other assets in the Trust Fund by the Seller to
the Depositor and by the Depositor to the Trustee for the benefit of the
Certificateholders. Further, it is not intended that any such conveyances be
deemed a pledge of the Mortgage Loans by the Seller to the Depositor to secure a
debt or other obligation of the Seller, or a pledge of the Mortgage Loans by the
Depositor to the Trustee for the benefit of the Certificateholders to secure a
debt or other obligation of the Depositor. However, in the event that the
Mortgage Loans are held to be property of the Seller or the Depositor or if for
any reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans and other assets in the Trust Fund, then it is intended that:
(i) this Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the UCC;
(ii) the conveyances provided for in Sections 2.01 and 2.02 shall be
deemed a grant by the Seller to the Depositor, and by the Depositor to the
Trustee for the benefit of the Certificateholders, as the case may be, of (1) a
security interest in all of the Seller's right and Depositor's right, as
applicable, (including the power to convey title thereto), title and interest,
whether now owned or hereafter acquired, in and to (A) the Mortgage Loans,
including the Mortgage Notes, the Mortgages, any related insurance policies and
all other documents in the related Mortgage Files, (B) all amounts payable
pursuant to the Mortgage Loans in accordance with the terms thereof and (C) any
and all general intangibles consisting of, arising from or relating to any of
the foregoing, and all proceeds of the conversion, voluntary or involuntary, of
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the foregoing into cash, instruments, securities or other property, including
without limitation all Liquidation Proceeds, all Insurance Proceeds and all
amounts from time to time held or invested in the Distribution Account and the
Custodial Account, whether in the form of cash, instruments, securities or other
property and (2) an assignment by the Seller to the Depositor and by the
Depositor to the Trustee for the benefit of the Certificateholders of any
security interest in any and all of the Seller's and Depositor's right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to the property described in the foregoing
clauses (1)(A) through (C) ;
(iii) the possession by the Trustee, the Custodian or any other agent
of the Trustee of Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party," or possession by a purchaser or a person
designated by such secured party, for purposes of perfecting the security
interest pursuant to the UCC and any other UCC (including, without limitation,
Sections 9-313, 8-313 or 8-321 thereof); and
(iv) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Issuing
Entity for the purpose of perfecting such security interest under applicable
law.
(b) The Seller and the Depositor shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans
and the other property of the Trust Fund, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. Without
limiting the generality of the foregoing, the Seller and the Depositor shall
prepare and file any UCC financing statements that are necessary to perfect the
Depositor's and the Trustee's security interest in or lien on the Mortgage
Loans, as evidenced by an Officer's Certificate of the Seller and the Depositor,
and furnish a copy of each such filed financing statement to the Trustee. The
Seller and the Depositor shall prepare and file, at the expense of the Trust
Fund, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee's security
interest in or lien on the Mortgage Loans for the benefit of the
Certificateholders, including without limitation (i) continuation statements,
and (ii) to the extent that a Responsible Officer of the Depositor has received
written notice of such change or transfer, such other statements as may be
occasioned by (A) any change of name of the Seller, the Depositor or the
Trustee, (B) any change of location of the domicile or the chief executive
office of the Seller or the Depositor, or (C) any transfer of any interest of
the Seller or the Depositor in any Mortgage Loan.
(c) Neither the Seller nor the Depositor shall organize under the law of
any jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice of
such action to the related Servicer and the Trustee. Before effecting such
change, each of the Seller or the Depositor proposing to change its jurisdiction
of organization shall prepare and file in the appropriate filing office any
financing statements or other statements necessary to continue the perfection of
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the interests of its transferees, including the Trustee for the benefit of the
Certificateholders, in the Mortgage Loans.
(d) Neither the Seller nor the Depositor shall take any action inconsistent
with the sale by the Seller or the Depositor of its right, title and interest in
and to the Mortgage Loans or Trust Fund and shall indicate or shall cause to be
indicated in its records and records held on its behalf that ownership of each
Mortgage Loan and the other property of the Trust Fund is held by the Trustee
for the benefit of the Certificateholders. In addition, the Seller and the
Depositor shall respond to any inquiries from third parties with respect to
ownership of a Mortgage Loan or any other property of the Trust Fund by stating
that it is not the owner of such Mortgage Loan and that ownership of such
Mortgage Loan or other property of the Trust Fund is held by the Trustee for the
benefit of the Certificateholders.
SECTION 2.12 Purpose.
--------
(a) The permitted activities of the Issuing Entity shall be limited to the
following:
(i) to issue Certificates pursuant to the Agreement and to sell the
Certificates;
(ii) to pay the organizational, start-up and transactional expenses of
the Issuing Entity;
(iii) to assign, grant, transfer, pledge, sell and convey the Mortgage
Loans pursuant to this Agreement;
(iv) to enter into and perform its obligations under this Agreement;
(v) to engage in those activities, including entering into agreements
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(vi) subject to compliance with this Agreement, to engage in such
other activities as may be required in connection with the conservation of the
Trust Fund and the making of distributions to the Certificateholders.
(b) The Issuing Entity shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement. No amendment pursuant to Section 13.01 shall change the
permitted activities of the Issuing Entity.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of the Seller.
---------------------------------------------
The Seller hereby represents and warrants to the other parties hereto as of
the Closing Date that:
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(a) The Seller has been duly organized and is validly existing as a
Maryland business trust in good standing under the laws of Maryland, with full
power and authority to own its assets and conduct its business as presently
being conducted.
(b) The Seller has the full entity power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the sale of the
Mortgage Loans by the Seller, the transactions contemplated hereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with or result in a breach of any of the terms, the certificate of
incorporation, bylaws or any legal restriction or any agreement or instrument to
which the Seller is now a party or by which it is bound, or constitute a default
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Seller or its property is subject, or impair the ability of
the Issuing Entity to realize on the Mortgage Loans, or impair the value of the
Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement or
the sale of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Seller which, either individually or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or
contemplated herein, or which would be likely to impair materially the ability
of the Seller to perform under the terms of this Agreement.
(g) The transfer, assignment and conveyance of the Mortgage Loans by the
Seller pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
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(h) The Seller is solvent and the sale of the Mortgage Loans will not cause
the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken
to hinder, delay or defraud any of the Seller's creditors.
(i) The consideration received by the Seller upon the sale of the Mortgage
Loans under this Agreement constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans.
(j) The Seller has determined that the disposition of the Mortgage Loans
from Seller to Depositor pursuant to this Agreement will be afforded sale
treatment for accounting purposes, all on a non-consolidated basis.
(k) The Seller has not transferred the Mortgage Loans to the Depositor with
any intent to hinder, delay or defraud any of its creditors.
(l) The Seller has not dealt with any broker, investment banker, agent or
other Person that may be entitled to any commission or compensation in the
connection with the sale of the Mortgage Loans.
(m) Immediately prior to the transfer by the Seller to the Depositor of
each Mortgage Loan, the Seller had good and equitable title to each Mortgage
Loan, subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of any
nature. On and after the transfer by the Seller to the Depositor of each
Mortgage Loan, the Depositor will have good and equitable title to each Mortgage
Loan, subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of any
nature.
SECTION 3.02 Representations and Warranties of the Depositor.
------------------------------------------------
The Depositor hereby represents and warrants to the other parties hereto as
of the Closing Date that:
(a) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of Delaware, with full power and
authority to own its assets and conduct its business as presently being
conducted.
(b) The Depositor has the full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Depositor and the
consummation of the transactions contemplated hereby have been duly and validly
authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
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(d) None of the execution and delivery of this Agreement, the sale of the
Mortgage Loans by the Depositor, the transactions contemplated hereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with or result in a breach of any of the terms, certificate of
incorporation, bylaws or any legal restriction or any agreement or instrument to
which the Depositor is now a party or by which it is bound, or constitute a
default or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Depositor or its property is subject, or impair the
ability of the Issuing Entity to realize on the Mortgage Loans, or impair the
value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of or compliance by the Depositor with this
Agreement or the sale of the Mortgage Loans is evidenced by the consummation of
the transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Depositor which, either individually or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Depositor, or in
any material impairment of the right or ability of the Depositor to carry on its
business substantially as now conducted, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or to be
contemplated herein, or which would be likely to impair materially the ability
of the Depositor to perform under the terms of this Agreement.
(g) The transfer, assignment and conveyance of the Mortgage Loans by the
Depositor pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
(h) The Depositor is solvent and the sale of the Mortgage Loans will not
cause the Depositor to become insolvent. The sale of the Mortgage Loans is not
undertaken to hinder, delay or defraud any of the Depositor's creditors.
(i) The consideration received by the Depositor upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans.
(j) The Depositor has not transferred the Mortgage Loans to the Trust Fund
with any intent to hinder, delay or defraud any of its creditors.
(k) The Depositor has not dealt with any broker, investment banker, agent
or other Person that may be entitled to any commission or compensation in the
connection with the sale of the Mortgage Loans.
(l) Immediately prior to the transfer by the Depositor to the Trust Fund of
each Mortgage Loan, the Depositor had good and equitable title to each Mortgage
Loan (insofar as such title was conveyed to it by the Seller), subject to no
prior lien, claim, participation interest, mortgage, security interest, pledge,
charge or other encumbrance or other interest of any nature. On and after the
transfer by the Depositor to the Trust Fund of each Mortgage Loan, the Issuing
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Entity will have good and equitable title to each Mortgage Loan (insofar as such
title was conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or other
encumbrance or other interest of any nature.
SECTION 3.03 Representations and Warranties of the Master Servicer and
----------------------------------------------------------
Securities Administrator.
-------------------------
Xxxxx Fargo Bank, N.A. hereby represents and warrants to the other parties
hereto as of the Closing Date that:
(a) It is a national banking association, duly organized and validly
existing in good standing under the laws of the United States of America, with
full power and authority to own its assets and conduct its business as presently
being conducted.
(b) It has the full corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder, and the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Master Servicer or
the Securities Administrator and the consummation of the transactions
contemplated hereby have been duly and validly authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Master Servicer and Securities Administrator, enforceable against each in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement will conflict with or result in a breach of any of
the terms, articles of incorporation or by-laws or any legal restriction or any
agreement or instrument to which the Master Servicer or the Securities
Administrator are now a party or by which it is bound, or constitute a default
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Master Servicer or the Securities Administrator or their
respective properties are subject, or impair the ability of the Issuing Entity
to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer and the Securities Administrator of or
compliance by the Master Servicer and Securities Administrator with this
Agreement as evidenced by the consummation of the transactions contemplated by
this Agreement, or if required, such consent, approval, authorization or order
has been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Master Servicer or the Securities Administrator
which, either individually or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Master Servicer or the Securities Administrator, or in any
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material impairment of the right or ability of the Master Servicer or the
Securities Administrator to carry on its business substantially as now
conducted, or which would draw into question the validity of this Agreement or
the Mortgage Loans or of any action taken or to be contemplated herein, or which
would be likely to impair materially the ability of the Master Servicer or the
Securities Administrator to perform under the terms of this Agreement.
(g) At such time the Master Servicer is the successor servicer, the Master
Servicer or an Affiliate of the Master Servicer is a HUD-approved mortgagee
pursuant to Section 203 of the National Housing Act and is in good standing to
service Mortgage Loans for Xxxxxx Mae and Xxxxxxx Mac, and no event has
occurred, including but not limited to a change in insurance coverage, which
would make it or any of its Affiliates unable to comply with Xxxxxx Mae or
Xxxxxxx Mac eligibility requirements or which would require notification to
either Xxxxxx Mae or Xxxxxxx Mac.
(h) The consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Master Servicer and Securities
Administrator.
(i) It has not been terminated as master servicer or securities
administrator in a residential mortgage loan securitization, either due to a
master servicing default or other inability to perform the required services.
(j) No material changes to the Master Servicer's policies or procedures
with respect to the master servicing function for mortgage loans of a type
similar to the Mortgage Loans have occurred during the three-year period
immediately preceding the date hereof.
(k) There are no aspects of the Master Servicer's financial condition that
could have a material adverse effect on the performance by it of its master
servicing obligations under this Agreement.
(l) There are no legal or governmental proceedings pending (or known to be
contemplated) against the Master Servicer that are material to the
Certificateholders.
(m) There are no affiliations, relationships or transactions relating to
the Master Servicer with respect to this transaction and any party thereto
identified by the Depositor of a type described in Item 1119 of Regulation AB,
except that the Master Servicer, Securities Administrator and the Custodian are
the same entity.
ARTICLE IV
REPORTS
SECTION 4.01 Annual Assessment of Compliance.
--------------------------------
By March 15th of each year, commencing in March 2008, the Master Servicer
and the Securities Administrator, each at its own expense, shall furnish or
otherwise make available, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (A) a statement by such party of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Relevant Servicing Criteria
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to assess compliance with the Relevant Servicing Criteria, (C) such party's
assessment of compliance with the Relevant Servicing Criteria as of and for the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
4.05(a)(ii), including, if there has been any material instance of noncompliance
with the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such party's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
No later than the end of each fiscal year for the Trust for which a 10-K is
required to be filed, the Master Servicer shall forward to the Securities
Administrator and the Depositor the name of each Servicing Function Participant
engaged by it and what Relevant Servicing Criteria will be addressed in the
report on assessment of compliance prepared by such Servicing Function
Participant (provided, however, that the Master Servicer need not provide such
information to the Securities Administrator so long as the Master Servicer and
the Securities Administrator are the same Person). When the Master Servicer and
the Securities Administrator (or any Servicing Function Participant engaged by
them) submit their assessments to the Securities Administrator, such parties
will also at such time include the assessment and attestation pursuant to
Section 4.03 of each Servicing Function Participant engaged by it.
Promptly after receipt of each such report on assessment of compliance, (i)
the Depositor shall review each such report and, if applicable, consult with the
Master Servicer, the Securities Administrator, and any Servicing Function
Participant engaged by such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such party, and (ii)
the Securities Administrator shall confirm that the assessments, taken as a
whole, address all of the Servicing Criteria and taken individually address the
Relevant Servicing Criteria for each party as set forth on Exhibit 1122 and on
any similar exhibit set forth in each Servicing Agreement in respect of each
Servicer and notify the Depositor of any exceptions.
The Master Servicer shall include all annual reports on assessment of
compliance received by it from the Servicers with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section.
In the event the Master Servicer, the Securities Administrator, or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under, or resigns pursuant to, the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide a report on assessment of compliance pursuant to this Section
4.01, or to such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
SECTION 4.02 Annual Compliance Statement.
----------------------------
The Master Servicer and the Securities Administrator shall deliver or
otherwise make available (and each shall cause any Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator, on or before March 15th of each year, commencing in March 2008,
an Officer's Certificate stating, as to the signer thereof, that (A) a review of
such party's activities during the preceding calendar year or portion thereof
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and of such party's performance under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, has been made under
such officer's supervision and (B) to the best of such officer's knowledge,
based on such review, such party has fulfilled all its obligations under this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
The Master Servicer shall include all annual statements of compliance
received by it from each Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section.
In the event the Master Servicer or the Securities Administrator, or any
Servicing Function Participant engaged by any such party is terminated or
resigns pursuant to the terms of this Agreement, or any applicable agreement in
the case of a Servicing Function Participant, as the case may be, such party
shall provide an Officer's Certificate pursuant to this Section 4.02 or to such
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
SECTION 4.03 Attestation Report.
-------------------
By March 15th of each year, commencing in March 2008, the Master Servicer
and the Securities Administrator, each at its own expense, shall cause, and each
such party shall cause any Servicing Function Participant engaged by it to
cause, each at its own expense, a registered public accounting firm (which may
also render other services to the Master Servicer, the Trustee, the Securities
Administrator, or such other Servicing Function Participants, as the case may
be) and that is a member of the American Institute of Certified Public
Accountants to furnish an attestation report to the Securities Administrator and
the Depositor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii) on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing an
opinion as to whether such party's compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party's assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
Promptly after receipt of each such assessment of compliance and
attestation report, the Securities Administrator shall confirm that each
assessment submitted pursuant to Section 4.01 is coupled with an attestation
meeting the requirements of this Section and notify the Depositor of any
exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
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In the event the Master Servicer, the Securities Administrator, any
Servicer or any Servicing Function Participant engaged by any such party, is
terminated, assigns its rights and duties under, or resigns pursuant to the
terms of, this Agreement, or any applicable Custodial Agreement, Servicing
Agreement or sub-servicing agreement, as the case may be, such party shall cause
a registered public accounting firm to provide an attestation pursuant to this
Section 4.03, or such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
SECTION 4.04 Back-Up Certification.
----------------------
Each Form 10-K shall include a Xxxxxxxx-Xxxxx Certification, required to be
included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Master Servicer and
the Securities Administrator shall provide, and each such party shall cause any
Servicing Function Participant engaged by it to provide, to the Person who signs
the Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by March 15th of
each year in which the Trust is subject to the reporting requirements of the
Exchange Act and otherwise within a reasonable period of time upon request, a
certification (each, a "Back-Up Certification"), in the form attached hereto as
Exhibit SOX, upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity's officers, directors and
Affiliates (collectively with the Certifying Person, "Certification Parties")
can reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at (000) 000-0000. In the
event any such party or any Servicing Function Participant engaged by such party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable sub-servicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section 4.04
with respect to the period of time it was subject to this Agreement or any
applicable sub-servicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification in the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this Section or any Servicing Agreement or Custodial
Agreement.
SECTION 4.05 Commission Reporting.
---------------------
(a) The Securities Administrator shall, in accordance with industry
standards, prepare and file with the Commission via XXXXX, the following reports
in respect of the Issuing Entity as and to the extent required under the
Exchange Act, each of which reports shall be signed by the Master Servicer.
(i) Distribution Report on Form 10-D. Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Securities Administrator shall prepare and file on behalf of the Trust any Form
10-D required by the Exchange Act, in form and substance as required by the
Exchange Act. The Securities Administrator shall file each Form 10-D with a copy
of the related Monthly Statement attached thereto. Any disclosure in addition to
the Monthly Statement that is required to be included on Form 10-D ("Additional
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Form 10-D Disclosure") shall be reported by the parties set forth on Exhibit I
to the Depositor and the Securities Administrator and directed and approved by
the Depositor pursuant to the following paragraph, and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-D Disclosure, except as set forth in
the next paragraph.
As set forth on Exhibit I hereto, within five calendar days after the
related Distribution Date, (i) the parties to this transaction shall be required
to provide to the Securities Administrator and to the Depositor, to the extent
known by a responsible officer thereof, in XXXXX-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-D Disclosure, if
applicable, together with an Additional Disclosure Notification in the form of
Exhibit L hereto (an "Additional Disclosure Notification") and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Depositor will be responsible for any reasonable fees and expenses assessed or
incurred by the Securities Administrator in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
After preparing the Form 10-D, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-D to the Depositor
(provided that such Form 10-D includes any Additional Form 10-D Disclosure).
Within two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Distribution Date, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-D. In the absence of receipt of any
written changes or approval, or if the Depositor does not request a copy of a
Form 10-D, the Securities Administrator shall be entitled to assume that such
Form 10-D is in final form and the Securities Administrator may proceed with the
execution and filing of the Form 10-D. A duly authorized representative of the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 4.05(b). Promptly
(but no later than one Business Day) after filing with the Commission, the
Securities Administrator will make available on its internet website a final
executed copy of each Form 10-D filed by the Securities Administrator. Each
party to this Agreement acknowledges that the performance by the Master Servicer
and the Securities Administrator of its duties under this Section 4.05(a)(i)
related to the timely preparation, execution and filing of Form 10-D is
contingent upon such parties strictly observing all applicable deadlines in the
performance of their duties under this Section 4.05(a)(i). Neither the Master
Servicer nor the Securities Administrator shall have any liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file such Form 10-D, where such failure results
from the Securities Administrator's inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-D, not resulting from its
own negligence, bad faith or willful misconduct.
Each of Form 10-D and Form 10-K requires the registrant to indicate (by
checking "yes" or "no") that it "(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days." The
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Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that it
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Securities Administrator in writing, no later than the fifth
calendar day after the related Distribution Date with respect to the filing of a
report on Form 10-D and no later than March 15th with respect to the filing of a
report on Form 10-K, if the answer to the questions should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(ii) Annual Report on Form 10-K. On or prior to the 90th day after the
end of each fiscal year of the Trust or such earlier date as may be required by
the Exchange Act (the "10-K Filing Deadline") (it being understood that the
fiscal year for the Trust ends on December 31st of each year), commencing in
March 2008, the Securities Administrator shall prepare and file on behalf of the
Trust a Form 10-K, in form and substance as required by the Exchange Act. Each
such Form 10-K shall include the following items, in each case to the extent
they have been delivered to the Securities Administrator within the applicable
time frames set forth in this Agreement, the related Servicing Agreements and
Custodial Agreements, (i) an annual compliance statement for each Servicer, the
Master Servicer, the Securities Administrator and any Servicing Function
Participant engaged by such parties (together with each Custodian, each, a
"Reporting Servicer") as described under Section 4.02 and in such other
agreements, (ii)(A) the annual reports on assessment of compliance with
servicing criteria for each Reporting Servicer, as described under Section 4.01
and in such other agreements, and (B) if each Reporting Servicer's report on
assessment of compliance with servicing criteria identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if each Reporting Servicer's report on assessment of
compliance with servicing criteria is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, (iii)(A) the registered public accounting firm
attestation report for each Reporting Servicer, as described under Section 4.03
or in such other agreement, and (B) if any registered public accounting firm
attestation report identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described in
Section 4.04 (provided, however, that the Securities Administrator, at its
discretion, may omit from the Form 10-K any annual compliance statement,
assessment of compliance or attestation report that is not required to be filed
with such Form 10-K pursuant to Regulation AB). Any disclosure or information in
addition to (i) through (iv) above that is required to be included on Form 10-K
("Additional Form 10-K Disclosure") shall be reported by the parties set forth
on Exhibit J to the Depositor and the Securities Administrator and directed and
approved by the Depositor pursuant to the following paragraph, and the
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure, except as
set forth in the next paragraph.
As set forth on Exhibit J hereto, no later than March 15th of each year
that the Trust is subject to the Exchange Act reporting requirements, commencing
in 2008, (i) the parties to this transaction shall be required to provide to the
Securities Administrator and to the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible form, or in such other form as
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otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 10-K Disclosure, if applicable, together
with an Additional Disclosure Notification and (ii) the Depositor will approve,
as to form and substance, or disapprove, as the case may be, the inclusion of
the Additional Form 10-K Disclosure on Form 10-K. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-K
Disclosure
on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-K to the Depositor. Within
three Business Days after receipt of such copy, but no later than March 25th,
the Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K. In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Securities Administrator shall be
entitled to assume that such Form 10-K is in final form and the Securities
Administrator may proceed with the execution and filing of the Form 10-K. A
senior officer of the Master Servicer in charge of the master servicing function
shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 4.05(b). Promptly (but no later
than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed copy
of each Form 10-K filed by the Securities Administrator. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 4.05(a)(ii) related to
the timely preparation, execution and filing of Form 10-K is contingent upon
such parties (and any Servicing Function Participant) strictly observing all
applicable deadlines in the performance of their duties under this Section
4.05(a)(ii), Section 4.04, Section 4.02, Section 4.01 and Section 4.03. Neither
the Master Servicer nor the Securities Administrator shall have any liability
for any loss, expense, damage or claim arising out of or with respect to any
failure to properly prepare, execute and/or timely file such Form 10-K, where
such failure results from the Securities Administrator's inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
(iii) Current Reports on Form 8-K. Within four Business Days after the
occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor, the Securities
Administrator shall prepare and file on behalf of the Trust any Form 8-K, as
required by the Exchange Act, provided that the Depositor shall file the initial
Form 8-K in connection with the issuance of the Certificates. Any disclosure or
information related to a Reportable Event or that is otherwise required to be
included on Form 8-K other than the initial Form 8-K ("Form 8-K Disclosure
Information") shall be reported by the parties set forth on Exhibit K to the
Depositor and the Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph, and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the
next paragraph.
As set forth on Exhibit K hereto, for so long as the Trust is subject to
the Exchange Act reporting requirements, no later than the close of business
(New York City time) on the 2nd Business Day after the occurrence of a
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Reportable Event (i) the parties to this transaction shall be required to
provide to the Securities Administrator and to the Depositor, to the extent
known by a responsible officer thereof, in XXXXX-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Form 8-K Disclosure Information, if
applicable, together with an Additional Disclosure Notification and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 8-K to the Depositor.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 8-K. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form 8-K,
the Securities Administrator shall be entitled to assume that such Form 8-K is
in final form and the Securities Administrator may proceed with the execution
and filing of the Form 8-K. A duly authorized representative of the Master
Servicer shall sign each Form 8-K. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator will
follow the procedures set forth in Section 4.05(b). Promptly (but no later than
one Business Day) after filing with the Commission, the Securities Administrator
will, make available on its internet website a final executed copy of each Form
8-K. The parties to this Agreement acknowledge that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 4.05(a)(iii) related to the timely preparation, execution and filing of
Form 8-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 4.05(a)(iii).
Neither the Master Servicer nor the Securities Administrator shall have any
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, execute and/or timely file such Form 8-K, where
such failure results from the Securities Administrator's inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
(iv) Form 15. On or prior to January 30th of the first year in which
the Securities Administrator is able to do so under applicable law, the
Securities Administrator shall (i) prepare and file a Form 15 Suspension
Notification relating to the automatic suspension of reporting in respect of the
Trust under the Exchange Act and (ii) notify the Swap Provider of such filing.
(b) In the event that the Securities Administrator is unable to timely file
with the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify electronically the Depositor. In the case of
Form 10-D and 10-K, the parties to this Agreement will cooperate to prepare and
file a Form 12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule
12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
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Administrator will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed Form
8-K, 10-D or 10-K needs to be amended in connection with any Additional Form
10-D Disclosure (other than for the purpose of restating any Monthly Report),
Additional Form 10-K Disclosure or Form 8-K Disclosure Information, the
Securities Administrator will electronically notify the Depositor and such other
parties to the transaction as are affected by such amendment, and such parties
will cooperate to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15,
Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be signed by a duly
authorized representative, or senior officer in charge of master servicing, as
applicable, of the Master Servicer. The parties to this Agreement acknowledge
that the performance by the Master Servicer and the Securities Administrator of
its duties under this Section 4.05(b) related to the timely preparation,
execution and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
10-D or 10-K is contingent upon each such party performing its duties under this
Section. Neither the Master Servicer nor the Securities Administrator shall have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file any such
Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where such
failure results from the Securities Administrator's inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
SECTION 4.06 Distribution Date Report.
-------------------------
(a) On each Distribution Date, the Securities Administrator shall make
available to the other parties hereto a report containing information with
respect to such Distribution Date (each, a "Distribution Date Report"),
including the following items (on the basis of information provided with respect
to the Mortgage Loans by the Servicers):
(i) the Interest Distribution Amount and Interest Carry Forward Amount
for each Class of Certificates;
(ii) the Pass-Through Rate with respect to each Class of Certificates,
if applicable, and the Group I and Group II Net Rate Cap and Group II
Adjusted Rate Cap;
(iii) the Group I and Group II Interest Remittance Amount, the Group I
and Group II Principal Remittance Amount, Group I and Group II Principal
Distribution Amount, Group I and Group II Overcollateralization Amount,
Group 1 and Group II Overcollateralization Deficiency Amount, Group I and
Group II Target Overcollateralization Amount, Group II Allocated Net
Deferred Interest and Group II Net Deferred Interest;
(iv) the Certificate Principal Balance of each Class of Certificates,
to the extent applicable, as of such Distribution Date after giving effect
to payments allocated to principal reported under subclause (iii) above and
the Notional Amount of each Class of Class C Certificates as of such
Distribution Date;
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(v) the amount of negative amortization on the Group II Mortgage
Loans;
(vi) for each Class of Certificates, amounts distributed on such
Distribution Date in respect of the Basis Risk Shortfall Carryover Amounts;
(vii) the amount of any Realized Losses incurred with respect to the
Mortgage Loans (x) in the applicable Prepayment Period and (y) in the
aggregate since the Cut-off Date;
(viii) the amount of Realized Losses allocated to each Class of Certificates
on such Distribution Date and the aggregate amount of Realized Losses
allocated to each Class of Certificates since the Closing Date;
(ix) the amount of the Servicing Fees, Master Servicing Fees and LPMI
Policy fees paid during the Due Period to which such Distribution Date
relates;
(x) the Substitution Adjustment Amounts paid during the related
Prepayment Period;
(xi) the Non-Mortgagor Prepayment Premium Payment Amounts paid during
the related Prepayment Period;
(xii) the Group I and Group II Net Rate Cap, the Cumulative Realized
Loss Percentage, the Delinquency Rate and the Rolling Three Month
Delinquency Rate for each Mortgage Loan Group in each case for such
Distribution Date, the related Due Period or the related Prepayment Period,
as applicable;
(xiii) the number and aggregate outstanding balance of the Mortgage
Loans, as reported to the Master Servicer and the Securities Administrator
by the Servicers:
(A) remaining outstanding,
(B) that are Delinquent 30 to 59 days as of the last of the
related Due Period,
(C) that are Delinquent 60 to 89 days as of the last of the
related Due Period,
(D) that are Delinquent 90 or more days as of the last of the
related Due Period,
(E) as to which foreclosure proceedings have been commenced
during the related Prepayment Period and since the Closing Date,
(F) as to which the related Mortgagor has filed for bankruptcy
after the Closing Date, and
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(G) that are REO Properties as of the last of the related
Prepayment Period;
For purposes hereof, Delinquency shall be determined in accordance with the
Mortgage Bankers Association determination.
(xiv) the aggregate Stated Principal Balance of any Mortgage Loans
with respect to which the related Mortgaged Property became an REO Property
as of the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs;
(xv) with respect to substitution of Mortgage Loans in the preceding
calendar month, the Stated Principal Balance of each Deleted Mortgage Loan
and of each Qualified Substitute Mortgage Loan;
(xvi) the aggregate amount of any Monthly Advances made by or on
behalf of each Servicer (or the Master Servicer) solely to the extent
reported to the Securities Administrator by the Master Servicer; and
(xvii) LIBOR with respect to such Distribution Date.
(b) The Securities Administrator will make such report and additional loan
level information (and, at its option, any additional files containing the same
information in an alternative format) available each month via the Securities
Administrator's website. The Securities Administrator's website can be accessed
at https:/xxx.xxxxxxx.xxx. Assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at 000-000-0000.
Such parties that are unable to use the website are entitled to have a paper
copy mailed to them via first class mail by notifying the Securities
Administrator at the address set forth herein, and indicating such. The
Securities Administrator shall have the right to change the way such statements
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes.
(c) The foregoing information and reports shall be prepared and determined
by the Securities Administrator based solely on Mortgage Loan data provided to
the Master Servicer and the Securities Administrator by the Servicers pursuant
to the applicable Servicing Agreement. In preparing or furnishing the foregoing
information, the Securities Administrator shall be entitled to rely conclusively
on the accuracy of the information or data regarding the Mortgage Loans and the
related REO Property that have been provided to the Master Servicer and the
Securities Administrator by the Servicer, and neither the Securities
Administrator nor the Master Servicer shall be obligated to verify, recompute,
reconcile or recalculate any such information or data.
(d) Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall furnish upon request to each Person who at
any time during the calendar year was a Certificateholder, the information set
forth in clause (a)(iv) of this Section 4.06 aggregated for such calendar year
or applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Securities Administrator shall be deemed to have been
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satisfied to the extent that substantially comparable information shall be
provided by the Trustee or the Securities Administrator pursuant to any
requirements of the Code as from time to time in effect.
SECTION 4.07 [Reserved].
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SECTION 4.08 Additional Information.
-----------------------
Each of the parties agrees to provide to the Securities Administrator such
additional information related to such party as the Securities Administrator may
reasonably request, including evidence of the authorization of the person
signing any certificate or statement, financial information and reports, and
such other information related to such party or its performance hereunder.
SECTION 4.09 Intention of the Parties and Interpretation.
--------------------------------------------
Each of the parties acknowledges and agrees that the purpose of Article IV
is to facilitate compliance by Xxxxx Fargo and the Depositor with the provisions
of Regulation AB. Therefore, each of the parties agrees that (a) the obligations
of the parties hereunder shall be interpreted in such a manner as to accomplish
that purpose, (b) the parties' obligations hereunder will be supplemented and
modified as necessary to be consistent with any such amendments, interpretive
advice or guidance, convention or consensus among active participants in the
asset-backed securities markets, advice of counsel, or otherwise in respect of
the requirements of Regulation AB, (c) the parties shall comply with requests
made by Xxxxx Fargo or the Depositor for delivery of additional or different
information as Xxxxx Fargo or the Depositor may determine in good faith is
necessary to comply with the provisions of Regulation AB, and (d) no amendment
of this Agreement shall be required to effect any such changes in the parties'
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB
SECTION 4.10 Indemnification.
----------------
Each of the Depositor, Master Servicer, Securities Administrator and any
Servicing Function Participant engaged by such party, respectively, shall
indemnify and hold harmless the Master Servicer, the Securities Administrator
and the Depositor, respectively, and each of its directors, officers, employees,
agents, and affiliates from and against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such party of any if its obligations under hereunder, including
particularly its obligations to provide any Assessment of Compliance,
Attestation Report, Compliance Statement or any information, data or materials
required to be included in any 1934 Act report, (b) any material misstatement or
omission in any information, data or materials provided by such party (or, in
the case of the Securities Administrator or Master Servicer, any material
misstatement or material omission in (i) any Compliance Statement, Assessment of
Compliance or Attestation Report delivered by it, or by any Servicing Function
Participant engaged by it, pursuant to this Agreement, or (ii) any Additional
Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure
concerning the Master Servicer or the Securities Administrator), or (c) the
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negligence, bad faith or willful misconduct of such indemnifying party in
connection with its performance hereunder. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Master Servicer, the
Securities Administrator or the Depositor, as the case may be, then each such
party agrees that it shall contribute to the amount paid or payable by the
Master Servicer, the Securities Administrator or the Depositor, as applicable,
as a result of any claims, losses, damages or liabilities incurred by such party
in such proportion as is appropriate to reflect the relative fault of the
indemnified party on the one hand and the indemnifying party on the other. This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
ARTICLE V
MASTER SERVICER
SECTION 5.01 Duties of the Master Servicer.
------------------------------
(a) The Master Servicer shall master service the Mortgage Loans in
accordance with the Accepted Master Servicing Practices and the provisions of
this Agreement. The Master Servicer shall monitor the performance of the
obligations of each Servicer under its Servicing Agreement (provided, however,
that the Master Servicer shall have no duty to monitor compliance by a Servicer
of its obligation to remit Non-Mortgagor Prepayment Premium Payment Amounts or
Prepayment Premiums owed to the Issuing Entity).
(b) The Master Servicer shall not be required to cause any Servicer to take
any action or refrain from taking any action if this Agreement or the related
Servicing Agreement does not require such Servicer to take such action or
refrain from taking such action. The Master Servicer shall have no liability for
the acts or omissions of any Servicer in the performance by such Servicer of its
obligations under the related Servicing Agreement.
(c) If a party does not act as both the Master Servicer and the Securities
Administrator, not later than the Business Day prior to each Distribution Date,
the Master Servicer shall forward to the Securities Administrator a statement
setting forth the status of any account or accounts, including any collection
accounts, maintained by the Master Servicer as of the close of business on the
Business Day prior to the related Distribution Date, indicating that all
remittances or payments required by this Agreement to be made by the Master
Servicer have been made (or if any required remittance or payment has not been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from any account maintained by the Master Servicer.
(d) The Master Servicer shall, in accordance with the applicable Servicing
Agreement and Section 5.08, in the event a Responsible Officer of the Master
Servicer has actual knowledge that that the related Servicer has failed to
perform its obligations in accordance therewith, terminate the rights and
obligations of such Servicer thereunder and assume the obligation of such
Servicer or appoint a successor servicer in accordance with the provisions of
Section 5.08. The Master Servicer shall pay the costs of such enforcement at its
own expense, and shall be reimbursed for the costs of such enforcement initially
(i) from a specific recovery of costs, expenses or attorneys' fees against such
servicer, and then, (ii) to the extent that such amounts are insufficient to
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reimburse the Master Servicer for the costs of such enforcement, from the
Distribution Account.
(e) Unless otherwise specified under the applicable Servicing Agreement, if
any Servicer fails to remit a Monthly Advance, the Master Servicer, in its
capacity as successor servicer, shall itself make such Monthly Advance. If the
Master Servicer determines that a Monthly Advance is required, it shall, on the
Business Day immediately prior to the related Distribution Date, deposit in the
Distribution Account immediately available funds in an amount equal to such
Monthly Advance. The Master Servicer shall be entitled to be reimbursed from the
Distribution Account in accordance with Section 8.01 for all Monthly Advances
made by it from late collections related to such Mortgage Loan or from other
funds as provided in Section 8.01. Notwithstanding anything to the contrary
herein, in the event the Master Servicer determines in its reasonable judgment
that a Monthly Advance is a Non-recoverable Advance, the Master Servicer shall
be under no obligation to make such Monthly Advance. In the event that the
Master Servicer determines that any such Monthly Advances are Non-recoverable
Advances, the Master Servicer shall provide the Trustee with a certificate
signed by a Responsible Officer of the Master Servicer evidencing such
determination and setting forth the basis for such determination.
(f) The Master Servicer undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement.
SECTION 5.02 Assignment or Delegation of Duties by the Master Servicer.
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Except as expressly provided herein, the Master Servicer shall not assign
or transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Master Servicer hereunder, unless the Trustee and the Depositor shall have
consented to such action (such consent of the Trustee or the Depositor not to be
unreasonably withheld or delayed); provided, however, that the Master Servicer
shall have the right without the prior written consent of the Trustee or the
Depositor to delegate or assign to or subcontract with or authorize or appoint
an Affiliate of the Master Servicer to perform and carry out any duties,
covenants or obligations to be performed and carried out by the Master Servicer
hereunder. In no case, however, shall any such delegation, subcontracting or
assignment to an Affiliate of the Master Servicer relieve the Master Servicer of
any liability hereunder. Notice of such permitted assignment shall be given
promptly by the Master Servicer to the Depositor and the Trustee.
SECTION 5.03 Fidelity Bond and Errors and Omission Policy.
---------------------------------------------
The Master Servicer, at its expense, shall maintain with responsible
companies, at its own expense, a blanket Fidelity Bond and an Errors and
Omissions Insurance Policy, with broad coverage on all officers, employees and
other Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
Errors and Omissions Insurance Policy shall be in such form and amount that is
consistent with coverage customarily maintained by master servicers of Mortgage
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Loans similar to the Mortgage Loans. The Master Servicer shall provide the
Depositor and the Trustee, upon request, with a copy of the Fidelity Bond and
Errors and Omission Policy.
SECTION 5.04 Compensation to the Master Servicer.
------------------------------------
(a) The Master Servicer will be entitled to the Master Servicer Fee on each
Distribution Date. All income and gain realized from any investment of funds in
the Distribution Account shall be for the benefit of the Master Servicer.
Notwithstanding the foregoing, if the Master Servicer is the successor servicer,
the Master Servicer shall deposit in the Distribution Account, on or before the
related Distribution Date, an amount equal to the lesser of (a) its servicing
compensation as successor Servicer with respect to such Distribution Date and
(b) the amount of any Compensating Interest Payment required to be paid by it as
successor Servicer with respect to such Distribution Date pursuant to the
related Servicing Agreement. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder and shall
not be entitled to reimbursement therefor except as provided in this Agreement.
(b) From the Master Servicing Fee, the Master Servicer shall pay the fees
of the Trustee and Custodian pursuant to an agreed fee schedule.
SECTION 5.05 Merger or Consolidation.
------------------------
Any Person into which the Master Servicer may be merged or consolidated, or
any Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or resulting
Person to the Master Servicer shall be a Person that shall be qualified and
approved (or that have an Affiliate that is qualified and approved) to service
Mortgage Loans for Xxxxxx Xxx or Xxxxxxx Mac and shall have a net worth of not
less than $25,000,000.
SECTION 5.06 Examination Rights.
-------------------
(a) The Depositor or their respective designees shall have the right to
examine and audit any and all of the related books, records, facilities or other
information of the Master Servicer, whether held by the Master Servicer or by
another on its behalf, solely and specifically relating to this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice;
provided, however, that such examination will not be permitted to the extent
such examination would be inconsistent with (i) the Master Servicer's current
reasonable procedures and policies in effect at such time, (ii) applicable law
(including any rules and regulations promulgated thereunder), including but not
limited to applicable copyright and trademark laws, (iii) any evidentiary
privileges that the Master Servicer or Securities Administrator may have with
respect to such materials, i.e., disclosure of such materials may cause the
Master Servicer to lose such privilege, and (iv) the confidentiality obligations
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imposed upon the Master Servicer by any unaffiliated third-party relating to
such books of account and records. Each party shall pay its own travel expenses
associated with such examination.
(b) The Master Servicer shall make available for interview to the Depositor
or their employees, agents, representatives and attorneys, such officers and
employees that are responsible for and/or knowledgeable about the performance of
the Master Servicer's obligations under this Agreement. Any such interview shall
be upon reasonable advance notice and only as long as such interview does not
disrupt the operations of the Master Servicer.
SECTION 5.07 Resignation of Master Servicer.
-------------------------------
(a) Except as otherwise provided in this Section 5.07, the Master Servicer
shall not resign from the obligations and duties hereby imposed on it except (i)
with the consent of the Depositor (which consent may not be unreasonably
withheld or delayed) or (ii) upon the determination that its duties hereunder
are no longer permissible under applicable law and such incapacity cannot be
cured by the Master Servicer. Any such determination permitting resignation
pursuant to clause (ii) above shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee and the Depositor. No such resignation
shall become effective until a successor master servicer shall have assumed the
Master Servicer's responsibilities and obligations under this Agreement. Notice
of such resignation shall be given promptly, but no less than 30 days prior to
the effectiveness of such resignation, by the Master Servicer to the Depositor
and the Trustee.
(b) Upon the resignation of the Master Servicer and the appointment of a
successor master servicer as described in the preceding paragraph, the
Securities Administrator, if the same party, also may resign upon notice to the
Depositor and the Trustee.
SECTION 5.08 Master Servicer to Act as Servicer; Appointment of
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Successor.
----------
(a) If the Master Servicer becomes aware of a Servicer Event of Default,
the Master Servicer shall promptly notify the Depositor, the Seller and the
Trustee. In each and every such case, so long as a Servicer Event of Default
shall not have been remedied, in addition to whatever rights the Master Servicer
or the Trustee may have at law or equity to damages, including injunctive relief
and specific performance, the Master Servicer, by notice in writing to the
Servicer, may terminate all the rights and obligations of such Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof.
(b) To the extent provided in the related Servicing Agreement: If a
Servicer is terminated as provided herein, upon written request from the
Depositor or the Master Servicer, such Servicer shall, at its expense, prepare,
execute and deliver to the successor entity designated by the Master Servicer
any and all documents and other instruments, place in such successor's
possession all Mortgage Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at such Servicer's sole
expense. The applicable Servicer shall cooperate with the Master Servicer and
such successor in effecting the termination of the Servicer's responsibilities
and rights hereunder, including without limitation, the transfer to such
successor for administration by it of all cash amounts which shall at the time
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be credited by the Servicer to the Custodial Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
(c) To the extent provided in the related Servicing Agreement: In
connection with the foregoing, the Servicer being terminated shall bear all
reasonable out-of-pocket costs of a servicing transfer, including but not
limited to those of the Master Servicer, the Securities Administrator, the
Trustee, legal fees and expenses, accounting and financial consulting fees and
expenses, and costs of amending the Agreement, if necessary. If such amounts are
not paid by (or required to be paid by) the terminated Servicer, they shall be
paid from amounts held in the Distribution Account pursuant to Section 5.08(h)
of this Agreement.
(d) On and after the time any Servicer resigns or is terminated by the
Master Servicer pursuant to this Section 5.08 or the terms of the applicable
Servicing Agreement, the Master Servicer shall appoint a successor servicer
pursuant to this Agreement, who shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on such Servicer by the terms and
provisions of this Agreement, the Servicing Agreement and applicable law.
(e) It is understood and acknowledged by the parties hereto and each
Certificateholder that there will be a period of transition (not to exceed 90
days) before the actual servicing functions can be fully transferred to any
successor servicer.
(f) Any successor to any Servicer appointed pursuant to this Agreement or
any Servicing Agreement shall be an institution that is a Xxxxxx Mae-and Xxxxxxx
Mac-approved servicer in good standing, has a net worth of at least $25,000,000
and is willing to service the Mortgage Loans and shall execute and deliver to
the Depositor, the Trustee, the Securities Administrator and the Master Servicer
an agreement accepting such delegation and assignment, which contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of such Servicer, with like effect as if originally
named as a party to this Agreement; provided, further that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior to
such assignment and delegation shall not be downgraded, withdrawn or qualified
as a result of such assignment and delegation.
(g) In connection with such appointment and assumption, the Master Servicer
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree, but not in
excess of the Servicing Fee. The Depositor, the Master Servicer and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
(h) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
this Agreement (including, without limitation, (i) all legal costs and expenses
and all due diligence costs and expenses associated with an evaluation of the
potential termination of a Servicer as a result of an event of default by such
Servicer and (ii) all costs and expenses associated with the complete transfer
of servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the
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Mortgage Loans in accordance with this Agreement) are not fully and timely
reimbursed (or required to be reimbursed) by the terminated Servicer, the Master
Servicer shall be entitled to reimbursement of such costs and expenses from the
Distribution Account.
(i) The successor servicer will not assume liability for the
representations and warranties of the Servicer that it replaces.
(j) Any successor to any Servicer shall give notice to the related
Mortgagors of such change of servicer and shall, during the term of its service
as Servicer maintain in force the policy or policies that such Servicer is
required to maintain pursuant to this Agreement.
(k) No successor servicer will be responsible for delays attributable to
the applicable Servicer's failure to deliver information, defects in the
information supplied by such Servicer or other circumstances beyond the control
of the successor servicer. The successor servicer will make arrangements with
the applicable Servicer for the prompt and safe transfer of, and such Servicer
shall provide to the successor servicer, all necessary servicing files and
records, including (as deemed necessary by the successor servicer at such time):
(i) microfiche loan documentation, (ii) servicing system tapes, (iii) mortgage
loan payment history, (iv) collections history and (v) the trial balances, as of
the close of business on the day immediately preceding conversion to the
successor servicer, reflecting all applicable mortgage loan information. The
successor servicer shall have no responsibility and shall not be in default
hereunder nor incur any liability for any failure, error, malfunction or any
delay in carrying out any of its duties under this Agreement if any such failure
or delay results from the successor servicer acting in accordance with
information prepared or supplied by a Person other than the successor servicer
or the failure of any such Person to prepare or provide such information. The
successor servicer shall have no responsibility, shall not be in default and
shall incur no liability (i) for any act or failure to act by any third party,
including the servicer, or for any inaccuracy or omission in a notice or
communication received by the successor servicer from any third party or (ii)
which is due to or results from the invalidity, unenforceability of any Mortgage
Loan with applicable law or the breach or the inaccuracy of any representation
or warranty made with respect to any Mortgage Loan.
SECTION 5.09 Master Servicer Events of Default; Appointment of
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Successor.
----------
(a) The occurrence of any one or more of the following events shall
constitute a "Master Servicer Event of Default":
(i) any failure by the Master Servicer (other than in its capacity as
successor servicer) to remit to the Securities Administrator for payment to the
Certificateholders any funds required to be remitted by the Master Servicer
under the terms of this Agreement;
(ii) any failure on the part of the Master Servicer (other than in its
capacity as successor servicer) duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Master
Servicer contained in this Agreement (other than any failure to make any
required Monthly Advance as described in clause (ix) of this Section 5.09) that
materially and adversely affects the interest of the Certificateholders, which
continues unremedied for a period of 30 days after the earlier of (i) the date
on which written notice of such failure, requiring the same to be remedied,
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shall have been given to the Master Servicer by the Depositor or the Trustee, or
to the Master Servicer, the Depositor and the Trustee by Certificateholders
representing more than 50% of the total Voting Interests and (ii) actual
knowledge of such failure by a Responsible Officer of the Master Servicer;
(iii) a petition with, or decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment of a conservator
or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Master Servicer and such petition decree or order shall have remained in force
undischarged or unstayed for a period of 90 days;
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
it or of or relating to all or substantially all of its property;
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations;
(vi) the Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into another
entity or shall permit another entity to consolidate or merge into it, such that
the resulting entity does not meet the criteria for a successor master servicer
as specified in Section 5.08; or
(vii) any failure of the Master Servicer to make any Monthly Advances
required to be made by it hereunder within two Business Days following notice of
such default by the Trustee.
(b) If the Trustee has actual knowledge of any Master Servicer Event of
Default described in clauses (i) through (vii) of this Section 5.09, then, in
each and every case, subject to applicable law, so long as any such Master
Servicer Event of Default shall not have been remedied within any period of time
prescribed by this Section 5.09, if any, the Trustee, by notice in writing to
the Master Servicer may, and shall, if so directed by the Certificateholders
representing at least a majority of the Voting Interests, terminate all of the
rights and obligations of the Master Servicer hereunder. In addition, if a
Master Servicer Event of Default described in clause (vii) of this Section 5.09
shall occur, then, in each and every case, subject to applicable law, so long as
such Master Servicer Event of Default shall not have been remedied within the
time period prescribed by clause (vii) of this Section 5.09, the Trustee, by
notice in writing to the Master Servicer, shall promptly terminate all of the
rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof.
(c) On or after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer, but only in its capacity as
Master Servicer under this Agreement, whether with respect to the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee (as successor Master
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Servicer) or a successor designated by the Trustee pursuant to and under the
terms of this Agreement; and the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the defaulting Master Servicer as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination.
Notwithstanding anything to the contrary contained herein, in its role as
successor master servicer, the Trustee shall not be obligated to make any
Advance if it is prohibited from doing so under applicable law or determines
that such Advance, if made, would constitute a Non-recoverable Advance.
(d) The Trustee may, if it shall be unwilling to continue to so act, or
shall, if it is unable to so act, or does not satisfy the requirements of a
successor Master Servicer, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution
servicer, master servicer, servicing or mortgage servicing institution having a
net worth of not less than $25,000,000 and meeting such other standards for a
successor master servicer as are set forth in this Agreement, as the successor
to such Master Servicer in the assumption of all of the responsibilities, duties
or liabilities of a master servicer, like the Master Servicer. Such successor
master servicer may be an Affiliate of the Trustee; provided, however, that,
unless such Affiliate meets the net worth requirements and other standards set
forth herein for a successor master servicer, the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Issuing Entity and the Trustee for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted to the Master Servicer hereunder.
(e) The defaulting Master Servicer agrees to cooperate with the successor
master servicer in effecting the termination of the defaulting Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying each Servicer of the assignment of the master servicing
function and providing the successor master servicer all documents and records
in electronic or other form reasonably requested by it to enable the successor
master servicer to assume the defaulting Master Servicer's functions hereunder
and the transfer to the successor master servicer for administration by it of
all amounts which shall at the time be or should have been deposited by the
defaulting Master Servicer in the Distribution Account maintained by the
Securities Administrator and any other account or fund maintained by the Master
Servicer with respect to the Certificates or thereafter received with respect to
the Mortgage Loans.
(f) The Trustee or the successor master servicer shall be entitled to be
reimbursed by the Master Servicer (or by the Trust Fund, if the Master Servicer
is unable to fulfill its obligations hereunder) for all reasonable and properly
documented costs associated with the transfer of master servicing from the
predecessor Master Servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to master service the Mortgage Loans properly
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and effectively. If the terminated Master Servicer does not pay such
reimbursement within 30 days of its receipt of an invoice therefor, such
reimbursement shall be an expense of the Trust Fund and the successor master
servicer shall be entitled to withdraw such reimbursement from amounts on
deposit in the Distribution Account pursuant to Section 8.01(e); provided, that,
the terminated Master Servicer shall reimburse the Trust Fund for any such
expense incurred by the Trust Fund; and provided, further, that the Trustee
shall decide whether and to what extent it is in the best interest of the
Certificateholders to pursue any remedy against any party obligated to make such
reimbursement.
(g) The successor master servicer shall have no responsibility for any act
or omission of the outgoing Master Servicer and shall have no liability relating
to the representations and warranties of the Master Servicer set forth in
Section 3.03.
(h) No successor master servicer shall be deemed to be in default hereunder
by reason of any failure to make, or any delay in making, any remittance or
payment hereunder or any portion thereof caused by (i) the failure of the Master
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, (ii) the failure of the Master Servicer to cooperate as required by this
Agreement, (iii) the failure of the Master Servicer to deliver the Mortgage Loan
data to the Trustee as required by this Agreement or (iv) restrictions imposed
by any regulatory authority having jurisdiction over the Master Servicer.
(i) Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 5.04 and Section 8.05 to the extent such
reimbursement relates to the period prior to such Master Servicer's termination.
(j) Notwithstanding anything herein to the contrary, in no event shall the
Trustee be liable for any Servicing Fee or Master Servicing Fee or for any
differential in the amount of the Servicing Fee or Master Servicing Fee paid
hereunder and the amount necessary to induce any successor servicer or successor
master servicer to act as successor servicer or successor master servicer, as
applicable, under this Agreement and the transactions set forth or provided for
herein.
SECTION 5.10 Waiver of Defaults.
-------------------
The Certificateholders representing 66-2/3% of the Voting Interests may, on
behalf of all Certificateholders, waive any default or Master Servicer Event of
Default by the Master Servicer, except that a default in the making of any
required deposit to the Distribution Account that would result in a failure of
the Securities Administrator to make any required distribution of principal of
or interest on the Certificates may only be waived with the consent of 100% of
the affected Certificateholders. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
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SECTION 5.11 Notification of Master Servicer Default.
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(a) If any Master Servicer Event of Default shall occur, of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
promptly notify each Rating Agency of the nature and extent of such Master
Servicer Event of Default. The Securities Administrator or the Master Servicer
shall immediately give written notice to the Trustee upon the Master Servicer's
failure to remit Monthly Advances on the date specified herein.
(b) The Trustee shall within 45 days after the occurrence of any Master
Servicer Event of Default actually known to the Trustee, give written notice
thereof to the Certificateholders, unless such Master Servicer Event of Default
shall have been cured or waived prior to the issuance of such notice and within
such 45-day period.
(c) Upon termination of the Master Servicer or appointment of a successor
to the Master Servicer, in each case as provided herein, the Trustee shall
promptly mail notice thereof by first class mail to the Certificateholders at
their respective addresses appearing on the applicable register.
SECTION 5.12 Limitation on Liability of the Master Servicer.
-----------------------------------------------
(a) No provision of this Agreement shall be construed to relieve the Master
Servicer from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that the duties and
obligations of the Master Servicer shall be determined solely by the express
provisions of this Agreement, and the Master Servicer shall not be liable except
for the performance of such duties and obligations as are specifically set forth
in this Agreement. No implied covenants or obligations shall be read into this
Agreement against the Master Servicer and, in absence of bad faith on the part
of the Master Servicer, the Master Servicer may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any Certificates or opinions furnished to the Master Servicer and
conforming to the requirements of this Agreement.
(b) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
other parties hereto, the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such Person against any liability
that would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement.
SECTION 5.13 Master Servicer Covenants.
--------------------------
(a) If so requested by the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Master Servicer shall (i) notify the Depositor in
writing of (A) any material litigation or governmental proceedings pending
against the Master Servicer and (B) any affiliations or relationships that
develop following the closing date of this transaction between the Master
Servicer and any of the transaction parties (and any other parties identified in
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writing by the requesting party) with respect to this transaction, and (ii)
provide to the Depositor a description of such proceedings, affiliations or
relationships.
(b) As a condition to the succession to the Master Servicer as master
servicer under this Agreement by any Person (i) into which the Master Servicer
may be merged or consolidated, or (ii) which may be appointed as a successor to
the Master Servicer, the Master Servicer shall provide to the Depositor, at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Depositor, all information reasonably requested by the Depositor in order
to comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to any class of asset-backed securities.
(c) The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Custodial Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a loan by
loan basis, into which accounts shall be deposited within 48 hours (or as of
such other time specified in the related Servicing Agreement) of receipt all
collections of principal and interest on any Mortgage Loan and all collections
with respect to any REO Property received by a Servicer, including Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and
Advances made from the Servicer's own funds (less servicing compensation as
permitted by the applicable Servicing Agreement in the case of any Servicer) and
all other amounts to be deposited in the Custodial Account.
(d) To the extent required by the related Servicing Agreement and by the
related Mortgage Note and not violative of current law, the Master Servicer
shall enforce the obligation of each Servicer to establish and maintain one or
more Escrow Accounts and deposit and retain therein all collections from the
Mortgagors (or Advances by such Servicer) for the payment of taxes, assessments,
hazard insurance premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the Master Servicer to compel a Servicer to
establish an Escrow Account in violation of applicable law.
SECTION 5.14 Maintenance of Hazard Insurance and Other Insurance.
----------------------------------------------------
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained fire, flood and hazard insurance with extended
coverage customary in the area where the Mortgaged Property is located in
accordance with the related Servicing Agreements. It is understood and agreed
that such insurance provided for in this Section 5.14 shall be with insurers
meeting the eligibility requirements set forth in the applicable Servicing
Agreement and that no earthquake or other additional insurance is to be required
of any Mortgagor or to be maintained on property acquired in respect of a
defaulted loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
(b) To the extent required by the related Servicing Agreement, any amounts
collected by any Servicer, under any insurance policies (other than amounts to
be applied to the restoration or repair of the property subject to the related
Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the related Custodial Account. Any
cost incurred by the Master Servicer or any Servicer in maintaining any such
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insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer.
SECTION 5.15 Indemnification.
----------------
The Master Servicer agrees to indemnify the Depositor, the Seller, the
Issuing Entity, the Trustee, the Securities Administrator and each Servicer and
hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses that the Depositor, the Seller, the Issuing Entity,
the Trustee, the Securities Administrator or any Servicer may sustain as a
result of the Master Servicer's willful malfeasance, bad faith or gross
negligence in the performance of its duties or by reason of reckless disregard
of its obligations and duties hereunder. The Depositor, the Issuing Entity, the
Trustee, the Seller, the Securities Administrator or the related Servicer shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or with respect to the Mortgage Loans entitling the
Depositor, the Seller, the Issuing Entity, the Trustee, the Securities
Administrator or the related Servicer to indemnification under this Section
5.15, whereupon the Master Servicer shall assume the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim.
SECTION 5.16 Opinion.
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On or before the Closing Date, the Master Servicer shall cause to be
delivered to other parties hereto and the Underwriter one or more Opinions of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the recipients thereof, as to the due authorization, execution and delivery
of this Agreement by the Master Servicer and the enforceability thereof.
SECTION 5.17 Realization Upon Defaulted Mortgage Loans; REO Property.
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(a) The Master Servicer shall cause each Servicer (to the extent required
under the related Servicing Agreement) to foreclose upon or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trust Fund for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Master Servicer shall enforce the obligation of the Servicers, to the extent
provided in the applicable Servicing Agreement, to (i) cause the name of the
Trust Fund to be placed on the title to such REO Property and (ii) ensure that
the title to such REO Property references this Agreement. The Master Servicer
shall, to the extent provided in the applicable Servicing Agreement, cause the
applicable Servicer to sell any REO Property as expeditiously as possible and in
accordance with the provisions of this Agreement and the related Servicing
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Agreement, as applicable. The Master Servicer shall cause the applicable
Servicer to protect and conserve such REO Property in the manner and to the
extent required by the applicable Servicing Agreement, subject to the REMIC
Provisions. In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall enforce the obligation of the related
Servicer to dispose of such Mortgaged Property within the time period specified
in the applicable Servicing Agreement, but in any event within three years after
the acquisition by the Servicer for the Trust Fund (such period, the "REO
Disposition Period") unless (i) the Servicer provides to the Trustee, the Master
Servicer and the Securities Administrator an Opinion of Counsel to the effect
that the holding by the Trust Fund of such Mortgaged Property subsequent to
three years after its acquisition will not result in the imposition of taxes on
"prohibited transactions" of the Trust Fund as defined in Section 860F of the
Code or under the law of any state in which real property securing a Mortgage
Loan owned by the Trust Fund is located or cause any REMIC created hereunder to
fail to qualify as a REMIC for federal income tax purposes or for state tax
purposes under the laws of any state in which real property securing a Mortgage
Loan owned by the Trust Fund is located at any time that any Certificates are
outstanding or (ii) the Servicer shall have applied for and received an
extension of such period from the Internal Revenue Service, in which case the
Trust Fund may continue to hold such Mortgaged Property for the period of such
extension. In the event that any Servicing Agreement permits the Trust Fund the
option to manage, operate or service any REO Property directly, rather than
acting through the related Servicer, neither the Master Servicer nor the Trustee
shall (i) be obligated to exercise any such option or (ii) have any liability to
the Trust Fund or the Certificateholders if it does not exercise any such
option.
(c) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Servicer Custodial Account.
(d) The applicable Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition of
such REO Property; provided that any such unreimbursed Advances as well as any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(e) To the extent provided in the Servicing Agreements: The Liquidation
Proceeds from the final disposition of the REO Property, net of any payment to
the applicable Servicer as provided above shall be deposited in the related
Servicer's Custodial Account on or prior to the Determination Date in the month
following receipt thereof and be remitted by wire transfer in immediately
available funds to the Master Servicer for deposit into the Distribution
Account.
Notwithstanding any other provision of this Agreement, the Master Servicer
shall not authorize any Servicer of any Mortgaged Property acquired by the Trust
Fund to allow such Mortgaged Property to be rented (or allowed to continue to be
rented) or otherwise used for the production of income by or on behalf of the
Trust Fund in such a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify as "foreclosure property" within the
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meaning of Section 860G(a)(8) of the Code, (ii) result in the receipt by any
REMIC created hereunder of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or any "net income from foreclosure
property" which is subject to taxation under the REMIC Provisions or (iii)
subject any REMIC created hereunder to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the Master Servicer or related
Servicer, as applicable, has agreed to indemnify and hold harmless the Trust
Fund with respect to the imposition of any such taxes.
ARTICLE VI
THE SECURITIES ADMINISTRATOR
SECTION 6.01 Duties of the Securities Administrator.
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(a) The Securities Administrator shall perform such duties and only such
duties that are specifically set forth in the this Agreement.
(b) The Securities Administrator, upon receipt of all resolutions,
Certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that the Securities Administrator shall not be responsible for the accuracy or
content of any resolution, certificate statement, opinion, report, document,
order or other instrument furnished by any Servicer, the Seller, the Master
Servicer or the Depositor. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Securities
Administrator shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, the Securities Administrator will provide notice to the
Certificateholders. Notwithstanding the foregoing, the Securities Administrator
(including in its roles as Supplemental Interest Trust Trustee and Final
Maturity Reserve Trustee) shall have no obligation to reconcile, recompute or
recalculate any remittances or reports of any Servicer, the Swap Provider or the
Cap Provider, and the Securities Administrator may fully rely upon and shall
have no liability with respect to information provided by such Servicer or the
Cap Provider.
(c) The Securities Administrator is hereby appointed as Paying Agent. On
each Distribution Date, the Securities Administrator, as Paying Agent, shall
make monthly payments and the final payment to the Certificateholders as
provided in Section 8.05 of this Agreement. On each Distribution Date, the
Securities Administrator shall make a Distribution Date Report available as
provided in Section 4.06.
(d) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Securities Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuing Entity and shall be, in the Securities
Administrator's opinion, no less favorable to the Issuing Entity than would be
available from unaffiliated parties.
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(e) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Securities Administrator (including in its roles as
Supplemental Interest Trust Trustee and Final Maturity Reserve Trustee) shall be
subject to the same standard of care and have the same rights, indemnifications
and immunities as the Trustee hereunder, including, without limitation, the
right to reimbursement and indemnification on behalf of the Issuing Entity from
funds in the Distribution Account for all losses, costs and expenses of any kind
or nature (including without limitation attorneys' fees and disbursements)
incurred by the Securities Administrator (including without limitation in its
various capacities as Paying Agent, Certificate Paying Agent and Certificate
Registrar) in connection with the performance of its duties hereunder and under
the Swap Agreement and the Cap Agreement.
SECTION 6.02 Records.
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The Securities Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuing Entity and the
Depositor upon reasonable advance notice at any time during normal business
hours.
SECTION 6.03 Compensation.
-------------
The Securities Administrator shall be compensated by the Master Servicer as
separately agreed.
SECTION 6.04 No Joint Venture.
-----------------
Nothing contained in this Agreement (a) shall constitute the Securities
Administrator, the Master Servicer, any Servicer, the Seller or the Depositor,
respectively, and any of the Issuing Entity or the Trustee, as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, (b) shall be construed to impose any joint liability as
such on any of them or (c) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf of
the others.
SECTION 6.05 Other Activities of Securities Administrator and the
---------------------------------------------------------
Depositor.
----------
Nothing herein shall prevent the Securities Administrator, the Depositor or
their respective Affiliates from engaging in other businesses or, in its sole
discretion, from acting in a similar capacity as an Securities Administrator for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuing Entity.
SECTION 6.06 Certain Matters Affecting the Securities Administrator.
-------------------------------------------------------
(a) The Securities Administrator may request and conclusively rely upon,
and shall be fully protected in acting or refraining from acting upon, any
resolution, Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties.
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(b) The Securities Administrator may consult with counsel of its selection
and any advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel.
(c) The Securities Administrator shall not be under any obligation to
exercise any of the powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to the
Securities Administrator reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be incurred therein or
thereby.
(d) The Securities Administrator shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to do so
by the Certificateholders entitled to at least 25% of the Voting Interests;
provided, however, that if the payment within a reasonable time to the
Securities Administrator of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Securities Administrator not reasonably assured to the Securities Administrator
by such Certificateholders, the Securities Administrator may require reasonable
indemnity satisfactory to it against such expense, or liability from such
Certificateholders as a condition to taking any such action.
(f) The Securities Administrator may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents, nominees,
attorneys or a custodian.
(g) The Securities Administrator shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of the
investment security).
(h) The Securities Administrator shall not be deemed to have notice of any
Group I or Group II Trigger Event, Master Servicer Event of Default or any
defaults, events of default or termination events under the Swap Agreement or
the Cap Agreement unless a Responsible Officer of the Securities Administrator
has actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Securities Administrator at the Corporate
Trust Office of the Securities Administrator, and such notice references the
Issuing Entity and this Agreement. The Securities Administrator shall not have
any responsibility or liability for any action or failure to act by the Master
Servicer, any Servicer, or the Seller, nor shall the Securities Administrator be
obligated to supervise or monitor the performance of the Master Servicer, any
Servicer or the Seller hereunder or otherwise;
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(i) The rights, privileges, protections, immunities and benefits given to
the Securities Administrator, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, each Paying Agent,
the Certificate Registrar, agent, custodian and other Person employed to act
hereunder;
(j) The right of the Securities Administrator to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Securities Administrator shall not be answerable for other than its negligence
or willful misconduct in the performance of such act.
(k) Notwithstanding anything in this Agreement to the contrary, in no event
shall the Securities Administrator be liable to any Person for any act or
omission of the Master Servicer, the Servicer, the Trustee, the Cap Provider,
the Swap Provider, the Seller or the Custodian.
SECTION 6.07 Securities Administrator Not Liable for Certificates or
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Mortgage Loans.
---------------
The recitals contained herein and in the Certificates (other than the
authentication and countersignature on the Certificates) shall be taken as the
statements of the Issuing Entity, and neither the Securities Administrator, the
Paying Agent nor the Certificate Registrar assumes any responsibility for the
correctness of the same. The Securities Administrator does not make any
representation or warranty as to the validity or sufficiency of this Agreement,
or of the Certificates (other than the countersignature on the Certificates),
the Swap Agreement, the Cap Agreement or of any Mortgage Loan or related
document or of MERS or the MERS System. The Securities Administrator shall not
be accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor in respect of the Mortgage Loans
or deposited in or withdrawn from the Custodial Account by the Servicer. The
Securities Administrator shall not have any duty (a) to see to any recording,
filing or depositing of this Agreement or any financing statement or
continuation statement evidencing a security interest, or to see to the
maintenance of any such recording, filing or depositing thereof, (b) to see to
any insurance or (c) to see to the payment or discharge of any tax, assessment
or other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund.
SECTION 6.08 Securities Administrator May Own Certificates.
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The Securities Administrator, in its individual capacity, or in any
capacity other than as Securities Administrator hereunder, may become the owner
or pledgee of any Certificates with the same rights as it would have if it were
not Securities Administrator, and may otherwise deal with the parties hereto.
SECTION 6.09 Eligibility Requirements for the Securities Administrator.
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The Securities Administrator hereunder shall at all times be an entity duly
organized and validly existing under the laws of the United States of America or
any state thereof, authorized under such laws to exercise corporate trust
powers, and shall have a combined capital and surplus of at least $50,000,000, a
minimum long-term debt rating in the third highest rating category by each
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Rating Agency, a minimum short-term debt rating in the second highest rating
category by a Rating Agency, and shall each be subject to supervision or
examination by federal or state authority. If such entity publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 6.09, the combined capital and surplus of such entity shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Securities Administrator shall
cease to be eligible in accordance with the provisions of this Section 6.09, the
Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal of the Securities Administrator.
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(a) The Securities Administrator (including the Securities Administrator as
Paying Agent and as Certificate Registrar) may at any time resign and be
discharged from the trust hereby created by giving written notice thereof to the
Depositor, the Trustee, the Master Servicer, each Servicer and each Rating
Agency. Upon receiving such notice of resignation of the Securities
Administrator, the Depositor shall promptly appoint a successor Securities
Administrator that meets the requirements in Section 6.11, by written
instrument, in duplicate, one copy of which instrument shall be delivered to
each of the resigning Securities Administrator and one copy to the successor
Securities Administrator. If no successor Securities Administrator shall have
been so appointed and having accepted appointment within 60 days after the
giving of such notice of resignation, the resigning Securities Administrator may
petition any court of competent jurisdiction for the appointment of a successor
Securities Administrator.
(b) If at any time the Securities Administrator shall cease to be eligible
in accordance with the provisions of Section 6.11 or if at any time the
Securities Administrator shall be legally unable to act, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Securities Administrator or of its
property shall be appointed, or any public officer shall take charge or control
of the Securities Administrator or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor may remove the
Securities Administrator (including the Securities Administrator as Paying Agent
and as Certificate Registrar, Supplemental Interest Trust Trustee and Final
Maturity Reserve Trustee). If the Depositor removes the Securities Administrator
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Securities Administrator that meets the
requirements of Section 6.11, by written instrument, in duplicate, one copy of
which instrument shall be delivered to the successor Securities Administrator
and one copy to each of the Master Servicer and the Servicer.
(c) The Certificateholders entitled to at least 51% of the Voting Interests
may at any time remove the Securities Administrator (including the Securities
Administrator as Paying Agent and as Certificate Registrar) and appoint a
successor Securities Administrator by written instrument or instruments signed
by such Certificateholders or their attorneys-in-fact duly authorized, one
complete set of which instruments shall be delivered to the Depositor, one
complete set to the Securities Administrator so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Certificateholders, the Securities Administrator and the Master Servicer and
each Servicer by the Depositor.
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SECTION 6.11 Successor Securities Administrator.
-----------------------------------
(a) Any successor Securities Administrator appointed as provided in this
Section 6.11 shall execute, acknowledge and deliver to the Depositor, the
Issuing Entity, the Trustee, each Servicer, the Master Servicer and to its
predecessor Securities Administrator an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
Securities Administrator shall become effective, and such successor Securities
Administrator without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Securities Administrator.
The Depositor, the Issuing Entity, the Trustee, the Servicer, the Master
Servicer and the predecessor Securities Administrator shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Securities
Administrator, all such rights, powers, duties and obligations.
(b) No successor Securities Administrator shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 6.09, and the appointment of such successor Securities Administrator
shall not result in a downgrading of the Classes of Certificates rated by any
Rating Agency, as evidenced by a letter from each Rating Agency.
(c) Upon acceptance of appointment by a successor Securities Administrator
as provided in this Section 6.11, the successor Securities Administrator shall
mail notice of such appointment hereunder to all Holders of Certificates at
their addresses as shown in the Certificate Register and to the Rating Agencies.
SECTION 6.12 Merger or Consolidation of Securities Administrator.
----------------------------------------------------
Any corporation or association into which the Securities Administrator may
be merged or converted or with which it may be consolidated or any corporation
or association resulting from any merger, conversion or consolidation to which
the Securities Administrator shall be a party, or any corporation or association
succeeding to the business of the Securities Administrator shall be the
successor of the Securities Administrator hereunder, provided such corporation
or association shall be eligible under the provisions of Section 6.09, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
SECTION 6.13 Limitation of Liability.
------------------------
(a) No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement; the Securities
Administrator shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Securities Administrator and, in the absence of bad faith on the part of the
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Securities Administrator, the Securities Administrator may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Securities
Administrator that conform to the requirements of this Agreement;
(ii) The Securities Administrator shall not be liable for an error of
judgment made in good faith by a Responsible Officer of the Securities
Administrator unless it shall be proved that the Securities Administrator was
negligent in ascertaining or investigating the facts related thereto;
(iii) The Securities Administrator shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good faith
in accordance with the consent or at the direction of Certificateholder as
provided herein relating to the time, method and place of conducting any remedy
pursuant to this Agreement, or exercising or omitting to exercise any trust or
power conferred upon the Securities Administrator under this Agreement, the Swap
Agreement or the Cap Agreement; and
(iv) The Securities Administrator shall not be required to expend or
risk its own funds or otherwise incur financial or other liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not assured to it, and none of the provisions contained in this Agreement, the
Swap Agreement or the Cap Agreement shall in any event require the Securities
Administrator to perform, or be responsible for the manner of performance of,
any of the obligations of any Servicer or of the Cap Provider or the Swap
Provider.
SECTION 6.14 Opinion.
--------
On or before the Closing Date, the Securities Administrator shall cause to
be delivered to other parties hereto and the Underwriters one or more Opinions
of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the recipients thereof, as to the due authorization, execution
and delivery of this Agreement by the Securities Administrator and the
enforceability thereof.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Duties of Trustee.
------------------
(a) The Trustee undertakes to perform only such duties as are specifically
set forth in this Agreement and shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this Agreement
and no implied covenants or obligations shall be read into this Agreement
against the Trustee.
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(b) In the absence of bad faith on its part, the Trustee may conclusively
rely upon Certificates or opinions furnished to the Trustee as to the truth of
the statements and the correctness of the opinions expressed therein; however,
the Trustee shall examine the Certificates and opinions to determine whether or
not they conform on their face to the requirements of this Agreement.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, its own willful misconduct or its own
bad faith, except that:
(i) this paragraph does not limit the effect of paragraphs (a) and (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, that the Trustee's conduct does not constitute willful
misconduct, negligence or bad faith; and
(iv) the Trustee shall not be required to take notice or be deemed to
have notice or knowledge of (A) any failure by any Servicer or the Master
Servicer to comply with their obligations hereunder or (B) any Servicer Event of
Default or a Master Servicer Event of Default, unless a Responsible Officer of
the Trustee assigned to and working in its corporate trust department obtains
actual knowledge of such Servicer Event of Default or Master Servicer Event of
Default or shall have received written notice thereof. In the absence of such
actual knowledge or notice, the Trustee may conclusively assume that there is no
Servicer Event of Default or Master Servicer Event of Default.
(d) Money held in trust by the Trustee, if any, need not be segregated from
other funds except to the extent required by law or the terms of this Agreement.
(e) No provision of this Agreement shall require the Trustee to expend,
advance or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
(f) Every provision of this Agreement relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.01 and Section 7.02.
(g) The Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Trust Fund, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Trustee is a party, except as expressly provided (i) in accordance with the
powers granted to and the authority conferred upon the Trustee pursuant to this
Agreement and (ii) in accordance with any document or instruction delivered to
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the Trustee pursuant to the terms of this Agreement. No implied duties or
obligations shall be read into this Agreement against the Trustee. The Trustee
agrees that it will promptly take all action as may be necessary to discharge
any liens on any part of the Trust Fund that result from actions by, or claims
against itself (in its individual capacity, and not in the capacity of Trustee)
that are not related to the administration of the Trust Fund.
(h) The Trustee shall not be under any obligation to exercise any of the
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction of
any of the Certificateholders, pursuant to the provisions of this Agreement,
unless it shall have been offered reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred therein
or thereby.
SECTION 7.02 Rights of Trustee.
------------------
(a) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel, which shall not be at the
expense of the Trustee. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on an Officer's Certificate or
Opinion of Counsel. The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act.
(b) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, provided that the Trustee shall not be
responsible for any misconduct or negligence on the part if any agent or
attorney appointed with due care by it hereunder.
(c) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, that the Trustee's conduct does not constitute willful
misconduct, negligence or bad faith.
(d) The Trustee may consult with counsel, and any Opinion of Counsel with
respect to legal matters relating to this Agreement and the Certificates shall
be full and complete authorization and protection from liability in respect to
any action taken, omitted or suffered by it hereunder in good faith and in
accordance with any Opinion of Counsel of such counsel.
(e) In the event that the Trustee is also acting as Master Servicer
hereunder, the rights and protections afforded to the Trustee pursuant to this
Article VII shall be afforded to such Master Servicer.
(f) The permissive rights of the Trustee enumerated herein shall not be
construed as duties.
(g) In order to comply with its duties under the USA Patriot Act of 2001,
the Securities Administrator shall obtain and verify certain documentation from
certain other parties to this Agreement, including, but not limited to, each
party's name, address, and other identifying information.
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(h) Should the Trustee deem the nature of any action required on its part
to be unclear, the Trustee may require prior to such action that it be provided
by the Depositor with reasonable further instructions.
(i) Any permissive right to the Trustee enumerated hereunder shall not be
construed as a duty.
SECTION 7.03 Trustee Not Liable for Certificates.
------------------------------------
The Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates or of any Mortgage Loan, or related
document save that the Trustee represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms except that such
enforceability may be subject to (a) applicable bankruptcy and insolvency laws
and other laws affecting the enforcement of the rights of creditors generally,
and (b) general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Trustee shall not be
accountable for the use or application by the Depositor of funds paid to the
Depositor in consideration of the assignment of the Mortgage Loans to the Trust
Fund by the Depositor or for the use or application of any funds deposited into
the Custodial Account, Distribution Account or any other fund or account
maintained with respect to the Certificates. The Trustee shall not be
responsible for the legality or validity of this Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates issued
or intended to be issued hereunder. The Trustee shall not have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement.
SECTION 7.04 Trustee May Own Certificates.
-----------------------------
The Trustee and any Affiliate or agent of the Trustee, in its individual or
any other capacity may become the owner or pledgee of Certificates and may
transact banking and trust business with the other parties hereto and their
Affiliates with the same rights it would have if it were not the Trustee or such
Affiliate or agent.
SECTION 7.05 Eligibility Requirements for Trustee.
-------------------------------------
The Trustee hereunder shall at all times be (i) an institution insured by
the FDIC, (ii) a corporation or national banking association, organized and
doing business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority and (iii) not an Affiliate of the
Servicer, the Master Servicer or the Securities Administrator. If such
corporation or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section, the
combined capital and surplus of such corporation or national banking association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with provisions of this Section, the Trustee
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shall resign immediately in the manner and with the effect specified in Section
7.06.
SECTION 7.06 Resignation and Removal of Trustee.
-----------------------------------
(a) The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice thereof to the Depositor, the Servicer,
the Master Servicer and the Securities Administrator. Upon receiving such notice
of resignation, the Depositor will promptly appoint a successor trustee by
written instrument, one copy of which instrument shall be delivered to the
resigning Trustee, one copy to the successor trustee and one copy each to the
Servicer, the Master Servicer and the Securities Administrator. If no successor
trustee shall have been so appointed and shall have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.05 and shall fail to resign after written
request therefor by the Depositor, (ii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, (iii) the Trustee shall fail to
observe or perform in any material respect any of the covenants or agreements of
the Trustee contained in this Agreement or (iv) the continued use of the Trustee
would result in a downgrading, withdrawal or qualification of the rating by any
Rating Agency of any Class of Offered Certificates with a rating, then the
Depositor shall remove the Trustee and the Depositor shall appoint a successor
trustee by written instrument, one copy of which instrument shall be delivered
to the Trustee, one copy to the successor trustee and one copy each to the
Servicer, the Master Servicer and the Securities Administrator.
(c) The Holders of a Majority in Interest of the Certificates may at any
time upon 30 days written notice to the Trustee and to the Depositor remove the
Trustee by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee and one copy each to the
Servicer, the Master Servicer and the Securities Administrator. The Depositor
shall thereupon appoint a successor trustee in accordance with this Section
mutually acceptable to the Depositor, the Servicer, the Master Servicer and the
Securities Administrator.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.07.
SECTION 7.07 Successor Trustee.
------------------
(a) Any successor trustee appointed as provided in Section 7.06 shall
execute, acknowledge and deliver to the Depositor, the Servicer, the Master
Servicer, the Securities Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
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trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee herein. A
predecessor trustee shall deliver to the successor trustee, all Mortgage Files
and documents and statements related to each Mortgage File held by it hereunder,
if any, and shall duly assign, transfer, deliver and pay over to the successor
trustee the entire Trust Fund, together with all necessary instruments of
transfer and assignment or other documents properly executed necessary to effect
such transfer and such of the records or copies thereof maintained by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the successor Trustee and
the predecessor trustee shall execute and deliver such other instruments and do
such other things as may reasonably be required to more fully and certainly vest
and confirm in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 7.05.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section, the predecessor trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to any Rating Agency. The expenses of such
mailing shall be borne by the predecessor trustee.
SECTION 7.08 Merger or Consolidation of Trustee.
-----------------------------------
Any Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the business of the Trustee, shall be the successor to the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided that such Person shall be eligible under the provisions of Section
7.05.
SECTION 7.09 Appointment of Co-Trustee or Separate Trustee.
----------------------------------------------
(a) Notwithstanding any other provisions hereof, at any time the Trustee,
the Depositor or a Holder of a Majority in Interest of each Class of
Certificates shall have the power from time to time to appoint one or more
Persons, approved by the Trustee, to act either as co-trustees jointly with the
Trustee, or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable under the
laws of any state in which a property securing a Mortgage Loan is located or for
the purpose of otherwise conforming to any legal requirement, restriction or
condition in any state in which a property securing a Mortgage Loan is located
or in any state in which any portion of the Trust Fund is located. The separate
Trustees, co-trustees, or custodians so appointed shall be trustees or
custodians for the benefit of all the Certificateholders and shall have such
powers, rights and remedies as shall be specified in the instrument of
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appointment; provided, however, that no such appointment shall, or shall be
deemed to, constitute the appointee an agent of the Trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee, co-trustee, or custodian
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations, including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction, shall be exercised and performed by
such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing a Majority in
Interest of the Voting Interests may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy given
to the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.05 and no notice to Certificateholders of the appointment shall be required
under Section 7.07.
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(f) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the co-trustees
requested by the Trustee to be so appointed (which compensation shall not reduce
any compensation payable to the Trustee) and, if paid by the Trustee, shall be a
reimbursable expense pursuant to Section 7.11.
SECTION 7.10 Indemnification of Trustee.
---------------------------
The Trustee and its directors, officers, employees and agents shall be
entitled to indemnification from the Trust Fund for any loss, liability or
expense incurred in connection with any legal proceeding or incurred without
negligence or willful misconduct on their part, arising out of, or in connection
with, the acceptance or administration of the trusts created hereunder or in
connection with the performance of their duties hereunder, including any
applicable fees and expenses payable pursuant to Section 7.11 and the costs and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder.
Such compensation and reimbursement shall not be limited by any provision
of law in regard to compensation of a trustee of an express trust. The
provisions of this Section 7.10 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
SECTION 7.11 Fees and Expenses of Trustee.
-----------------------------
The Trustee shall be entitled to a fee payable by the Master Servicer from
the Master Servicing Fee. The Trustee shall be entitled to reimbursement by the
Trust Fund of all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with this Agreement (including fees and
expenses of its counsel and all persons not regularly in its employment), except
for expenses, disbursements and advances incurred by the Trustee in the routine
administration of its duties hereunder and any such expenses arising from its
negligence, bad faith or willful misconduct.
ARTICLE VIII
TRUST ADMINISTRATION
SECTION 8.01 Distribution Account.
---------------------
(a) The Securities Administrator shall establish and maintain accounts (the
"Distribution Account"), designated "Distribution Account of Xxxxx Fargo Bank,
N.A., as Securities Administrator, f/b/o Luminent Mortgage Trust 2007-1." The
Distribution Account shall be established as an Eligible Account. All funds
required to be deposited in the Distribution Account shall be held in trust for
the Trustee until withdrawn in accordance with Section 8.05. The Securities
Administrator shall segregate and hold all funds collected and received pursuant
to Servicing Agreements separate and apart from any of its own funds and general
assets. Within five Business Days following any request of the Trustee, the
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Securities Administrator shall provide the Trustee with written confirmation of
the existence of such Distribution Account.
(b) Funds on deposit in the Distribution Account may be invested at the
direction of the Master Servicer, but only in Permitted Investments selected by
the Master Servicer, which Permitted Investments shall mature not later than the
Distribution Date next following the date of such investment. All income and
gain realized from any such investment shall be for the benefit of the Master
Servicer. The amount of any losses incurred in respect of any such investments
shall be deposited in the Distribution Account by the Master Servicer out of its
own funds immediately as such losses are realized.
(c) The Distribution Account shall initially be maintained at Xxxxx Fargo
Bank, N.A. If an existing Distribution Account ceases to be an Eligible Account,
the Securities Administrator shall establish a new Distribution Account that is
an Eligible Account within ten days and transfer all funds and investment
property on deposit in such existing Distribution Account into such new
Distribution Account. The Securities Administrator shall give to the Master
Servicer and the Trustee prior written notice of the name and address of any
other depository institution at which the Distribution Account is maintained and
the account number of such Distribution Account.
(d) The Securities Administrator shall promptly upon receipt deposit or
cause to be deposited into the Distribution Account all amounts received by it
from any Servicer pursuant to the provisions of the respective Servicing
Agreements. On each Distribution Date, the entire amount on deposit in the
Distribution Account (subject to permitted withdrawals) shall be applied to make
the required distributions of principal and/or interest on each Class of
Certificates.
(e) The Securities Administrator shall make withdrawals from the
Distribution Account only for the purposes set forth in Section 8.05 and for the
following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error;
(ii) to reimburse the Master Servicer or the related Servicer, as
applicable, for Monthly Advances or Servicing Advances made by any such party,
such right to reimbursement pursuant to this subclause (ii) being limited to
amounts received on or in respect of a particular Mortgage Loan (including, for
this purpose, Liquidation Proceeds and Insurance Proceeds, to the extent related
to such Mortgage Loan) which represent late recoveries (net of the applicable
portion of the applicable Servicing Fee) of payments of principal or interest on
a Mortgage Loan respecting which any such Advance was made, it being understood,
in the case of any such reimbursement, that the Master Servicer's or any
Servicer's right thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse the Master Servicer or the related Servicer
following a final liquidation of a Mortgage Loan for any previously unreimbursed
Monthly Advances made by any such party (A) that such party determines in good
faith will not be recoverable from amounts representing late recoveries of
payments of principal or interest respecting the particular Mortgage Loan as to
which such Advance was made or from Liquidation Proceeds or Insurance Proceeds
with respect to such Mortgage Loan and/or (B) to the extent that such
unreimbursed Monthly Advances exceed the related Liquidation Proceeds or
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Insurance Proceeds, it being understood, in the case of each such reimbursement,
that the Master Servicer's or any Servicer's right thereto shall be prior to the
rights of the Certificateholders;
(iv) to reimburse the Master Servicer or the related Servicer from
related Liquidation Proceeds for amounts expended by it in good faith in
connection with the restoration of the related Mortgaged Property and, to the
extent that Liquidation Proceeds after such reimbursement exceed the unpaid
principal balance of the related Mortgage Loan, together with accrued and unpaid
interest thereon at the applicable Mortgage Rate less the applicable Servicing
Fee Rate for such Mortgage Loan to the Due Date next succeeding the date of its
receipt of such Liquidation Proceeds, to pay to itself or the related Servicer
out of such excess the amount of any unpaid assumption fees, late payment
charges or other Mortgagor charges on the related Mortgage Loan and to retain
any excess remaining thereafter as additional servicing compensation, it being
understood, in the case of any such reimbursement or payment, that such Master
Servicer's or any Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(v) to pay to the Seller or any Servicer, as applicable, with respect
to each Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
remitted on the date on which the related purchase was effected, and to pay to
the applicable party any Monthly Advances and Servicing Advances to the extent
specified in the definition of Repurchase Price;
(vi) to pay the Triad Premiums on the 25th day of each month (or if
such day is not a Business Day, on the next succeeding Business Day, commencing
February 2007);
(vii) to pay to the Master Servicer income earned on the investment of
funds on deposit in the Distribution Account;
(viii) on or immediately prior to each Distribution Date, to pay to
the Master Servicer the Master Servicing Fee;
(ix) to make payment of expenses and indemnities to itself, the Master
Servicer, the Trustee, the Custodian and the related Servicer pursuant to any
provision of this Agreement, the Custodial Agreement or any Servicing Agreement;
(x) to reimburse a successor master servicer (solely in its capacity
as successor master servicer), for any fee or advance occasioned by a
termination of the Master Servicer, and the assumption of such duties by the
Trustee or a successor master servicer appointed by the Trustee pursuant to
Section 5.09, in each case to the extent not reimbursed by the terminated Master
Servicer, it being understood, in the case of any such reimbursement or payment,
that the right of the Master Servicer or the Trustee thereto shall be prior to
the rights of the Certificateholders; and
(xi) to clear and terminate the Distribution Account pursuant to
Article XI.
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In connection with withdrawals pursuant to subclauses (ii), (iii) and (v)
above, the Master Servicer's or the Servicer's or such other Person's
entitlement thereto is limited to collections or other recoveries on the related
Mortgage Loan. The Securities Administrator shall therefore keep and maintain a
separate accounting for each Mortgage Loan for the purpose of justifying any
withdrawal from the Distribution Account it maintains pursuant to such
subclauses.
SECTION 8.02 Reserve Accounts.
-----------------
(a) The Securities Administrator shall establish and maintain two separate
accounts (each, "Reserve Account") designated "Reserve Account, Xxxxx Fargo
Bank, National Association, as trustee f/b/o Luminent Mortgage Trust 2007-1 -
Class I" and "Reserve Account, Xxxxx Fargo Bank, National Association, as
trustee f/b/o Luminent Mortgage Trust 2007-1 - Class II." Each Reserve Account
shall be established as an Eligible Account. Each Reserve Account shall be
closed when the related REMICs are terminated in accordance with Section 11.03.
All funds required to be deposited in the Class I Reserve Account shall be
held for the benefit of the Class I Certificateholders until withdrawn in
accordance with Section 8.02(b). The Securities Administrator shall deposit in
the Class I Reserve Account, on the date received by it, any Basis Risk
Shortfall Carryover Amounts received pursuant to Section 8.05(c)(iv) for the
related Distribution Date, which amounts shall be maintained separate and apart
from any of the Securities Administrator's own fund and general assets. Funds in
the Class I Reserve Account shall not be invested. Any amounts remaining in the
Class I Reserve Account when it is closed shall be payable to the Class I-C-2
Certificates.
All funds required to be deposited in the Class II Reserve Account shall be
held for the benefit of the Class II Certificateholders until withdrawn in
accordance with Section 8.02(b). The Securities Administrator shall deposit in
the Class II Reserve Account, on the date received by it, any Basis Risk
Shortfall Carryover Amounts received pursuant to Section 8.05(g)(iv) for the
related Distribution Date, which amounts shall be maintained separate and apart
from any of the Securities Administrator's own fund and general assets. Funds in
the Class II Reserve Account shall not be invested. Any amounts remaining in the
Class II Reserve Account when it is closed shall be payable to the Class II-C
Certificates.
(b) On each Distribution Date, the Securities Administrator shall withdraw
from the Class I Reserve Account any amounts deposited in the Class I Reserve
Account pursuant to Section 8.05(c)(iv), and apply it in the following order of
priority:
(i) to the Class I-A Certificates pro rata, any Basis Risk Shortfall
Carryover Amount for such Classes to the extent remaining unpaid;
(ii) to the Class B-1 Certificates, any Basis Risk Shortfall Carryover
Amount for such Class to the extent remaining unpaid;
(iii) to the Class B-2 Certificates, any Basis Risk Shortfall
Carryover Amount for such Class to the extent remaining unpaid;
140
(iv) to the Class B-3 Certificates, any Basis Risk Shortfall Carryover
Amount for such Class to the extent remaining unpaid;
(v) to the Class B-4 Certificates, any Basis Risk Shortfall Carryover
Amount for such Class to the extent remaining unpaid; and
(vi) to the Class I-C-2 Certificates, any remaining amount on deposit
in the Reserve Account.
(c) On each Distribution Date, the Securities Administrator shall withdraw
from the Class II Reserve Account any amounts deposited in the Class II Reserve
Account pursuant to Section 8.05(g)(iv), and apply it in the following order of
priority:
(i) to the Class II-A Certificates pro rata, any Basis Risk Shortfall
Carryover Amount for such Classes to the extent remaining unpaid;
(ii) to the Class II-B-1 Certificates, any Basis Risk Shortfall
Carryover Amount for such Class to the extent remaining unpaid;
(iii) to the Class II-B-2 Certificates, any Basis Risk Shortfall
Carryover Amount for such Class to the extent remaining unpaid;
(iv) to the Class II-B-3 Certificates, any Basis Risk Shortfall
Carryover Amount for such Class to the extent remaining unpaid;
(v) to the Class II-B-4 Certificates, any Basis Risk Shortfall
Carryover Amount for such Class to the extent remaining unpaid;
(vi) to the Class II-B-5 Certificates, any Basis Risk Shortfall
Carryover Amount for such Class to the extent remaining unpaid;
(vii) to the Class II-B-6 Certificates, any Basis Risk Shortfall
Carryover Amount for such Class to the extent remaining unpaid;
(viii) to the Class II-C Certificates, any remaining amount on deposit
in the Class II Reserve Account.
(d) The Reserve Accounts shall not be assets of any REMIC created pursuant
to this Agreement. Each Reserve Account will constitute an "outside reserve
fund" for purposes of the REMIC Provisions. The beneficial owner of the Class I
Reserve Account is the Class I-C-2 Certificateholder. The beneficial owner of
the Class II Reserve Account is the Class II-C Certificateholder. For all
federal tax purposes, amounts transferred or reimbursed to the Class I Reserve
Account shall be treated as a distribution by the Securities Administrator from
REMIC III to the Class I-C-1 REMIC III Regular Interest and from the Class I-C-1
REMIC III Regular Interest to the Class I-C-1 REMIC V Regular Interest and from
the Class I-C-1 REMIC V Regular Interest to the Class I-C-1 Certificateholder
for deposit into the Class I Reserve Account. For all federal tax purposes,
amounts transferred or reimbursed to the Class II Reserve Account shall be
treated as a distribution by the Securities Administrator from REMIC A5 in
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respect of the Class II-C REMIC A5 Regular Interest or Class II-F REMIC A5
Regular Interest, to the Class II-C Certificateholder for deposit into the Class
II Reserve Account.
(e) Any Basis Risk Shortfall Carryover Amounts paid by the Securities
Administrator pursuant to this Section 8.02 to the Class I Certificates shall be
accounted for by the Securities Administrator as amounts paid first as a
distribution from REMIC III to the holder of the Class I-C-1 REMIC III Regular
Interest and from the holder of the Class I-C-1 REMIC III Regular Interest to
the holder of the Class I-C-1 REMIC V Regular Interest and from the holder of
the Class I-C-1 REMIC V Regular Interest to the Class I-C-1 Certificates and
then to the relevant Certificates from the Class I Reserve Account. In addition,
the Securities Administrator shall account for the rights of Holders of the
Class I Certificates to receive payments of Basis Risk Shortfall Carryover
Amounts as rights in limited recourse notional principal contracts written by
the Class I-C-2 Certificates in favor of the Holders of the Class I
Certificates.
(f) Any Basis Risk Shortfall Carryover Amounts paid by the Securities
Administrator pursuant to this Section 8.02 to the Class II Certificates shall
be accounted for by the Securities Administrator as amounts paid as a
distribution from REMIC A5 in respect of the Class II-C REMIC A5 Regular
Interest or Class II-F REMIC A5 Regular Interest to the Class II-C Certificates
and then to the relevant Certificates from the Class II Reserve Account. In
addition, the Securities Administrator shall account for the rights of Holders
of the Class II Certificates to receive payments of Basis Risk Shortfall
Carryover Amounts as rights in limited recourse notional principal contracts
written by the Class II-C Certificates in favor of the Holders of the Class II
Certificates.
(g) For federal tax return and information reporting, the right of the
Holders of the Class I and Class II Certificates to receive payments under this
Section shall be assumed to have a value of zero unless and until required
otherwise by an applicable taxing authority.
(h) The Class I Reserve Account shall be an asset of the Class I-C-2
Grantor Trust as provided in Section 8.10.
(i) The Class II Reserve Account shall be an asset of the Class II-C
Grantor Trust as provided in Section 8.10.
SECTION 8.03 Calculation of LIBOR.
---------------------
(a) With respect to each Distribution Date, one-month LIBOR will equal the
interbank offered rate for one-month United States dollar deposits in the London
market as quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the
second London Business Day prior to the first day of the related Accrual Period.
"Telerate Page 3750" means the display designated as page 3750 on the Moneyline
Telerate and after December 31, 2006, the display designated as Reuters LIBOR01
on Reuters, or any other page as may replace page 3750 on that service for the
purpose of displaying London interbank offered rates of major banks. If the rate
does not appear on the page or any other page as may replace that page on that
service (or if that service is no longer offered, any other service for
displaying LIBOR or comparable rates as may be selected by the Securities
Administrator after consultation with the Depositor), the rate will be the
reference bank rate.
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(b) The reference bank rate will be determined on the basis of the rates at
which deposits in U.S. Dollars are offered by the reference banks, which shall
be three major banks that are engaged in transactions in the London interbank
market, selected by the Securities Administrator after consultation with the
Depositor, as of 11:00 A.M., London time, on the day that is two LIBOR Business
Days prior to the first day of the related Accrual Period to prime banks in the
London interbank market for a period of one month in amounts equal to the
aggregate Certificate Principal Balances of the Certificates. The Securities
Administrator will request the principal London office of each of the reference
banks to provide a quotation of its rate. If at least two quotations are
provided, the rate will be the arithmetic mean of the quotations. If on the
related date fewer than two quotations are provided as requested, the rate will
be the arithmetic mean of the rates quoted by one or more major banks in New
York City, selected by the Securities Administrator after consultation with the
Depositor, as of 11:00 A.M., New York City time, on the date for loans in U.S.
Dollars to leading European banks for a period of one month in amounts equal to
the aggregate Certificate Principal Balances of the Certificates. If no
quotations can be obtained, the rate will be one-month LIBOR for the prior
Distribution Date. The establishment of one-month LIBOR on each Interest
Determination Date by the Securities Administrator and the Securities
Administrator's calculation of the rate of interest applicable to the related
Certificates for the related Interest Accrual Period shall, in the absence of
manifest error, be final and binding.
SECTION 8.04 Supplemental Interest Trust.
----------------------------
(a) A separate trust is hereby established (the "Supplemental Interest
Trust"), the corpus of which shall include the Swap Agreement and the Cap
Agreement. The Supplemental Interest Trust shall be maintained by the Securities
Administrator, which is hereby appointed Supplemental Interest Trust Trustee and
hereby accepts such appointment. No later than the Closing Date, the
Supplemental Interest Trust Trustee shall establish and maintain two separate,
segregated trust accounts to be held in the Supplemental Interest Trust, one
entitled, "Xxxxx Fargo Bank, N.A. as Supplemental Interest Trust Trustee, in
trust for Luminent Mortgage Trust 2007-1, Swap Account" ("Swap Account") and one
entitled "Xxxxx Fargo Bank, N.A. as Supplemental Interest Trust Trustee, in
trust for Luminent Mortgage Trust 2007-1, Cap Account" ("Cap Account"). Each
account shall be an Eligible Account and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Supplemental Interest Trust
Trustee held pursuant to this Agreement. Amounts in the Swap Account and the Cap
Account shall be held uninvested.
(b) Prior to each Distribution Date and prior to any distribution to the
Certificateholders, the Supplemental Interest Trust Trustee shall deposit into
the Swap Account any amounts received by it from the Swap Provider and any Net
Swap Payments or Swap Termination Payments (other than due to a Swap Provider
Trigger Event) owed to the Swap Provider. For federal income tax purposes, any
amounts paid to the Swap Provider on each Distribution Date shall first be
deemed paid to the Swap Provider in respect of the Class Swap-IO REMIC VII
Regular Interest to the extent of the amount distributable on the Class Swap-IO
REMIC VII Regular Interest on such Distribution Date, and any remaining amount
shall be deemed paid to the Supplemental Interest Trust for the benefit of the
Swap Provider in respect of a Class IO Distribution Amount (as defined below).
The Swap Account shall be an "outside reserve fund" for federal income tax
purposes, and shall not be an asset of any Trust REMIC.
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(c) On each Distribution Date, the Supplemental Interest Trust Trustee
shall deposit into the Cap Account any amounts received by it from the Cap
Provider. The Cap Account shall be an "outside reserve fund" for federal income
tax purposes, and shall not be an asset of any Trust REMIC.
(d) On each Distribution Date (or the Business Day prior thereto in the
case of payments to the Swap Provider) (and, with respect to clauses third
through eighth and clause tenth, after all distributions of Group I Excess
Cashflow), funds in the Swap Account will be distributed in the following order
of priority:
(i) first, to the Swap Provider, all Net Swap Payments, if any, owed
to the Swap Provider for such Distribution Date;
(ii) second, to the Swap Provider, any Swap Termination Payment, other
than due to a Swap Provider Trigger Event, if any, owed to the Swap Provider (to
the extent not received from a replacement Swap Provider in respect of a
replacement Swap Agreement or similar agreement);
(iii) third, to the Class I Certificates then entitled to receive
distributions in respect of principal in the priority described in Section
8.05(b), any remaining Group I Overcollateralization Deficiency;
(iv) fourth, to each Class of Class I-A certificates, pro rata, based
upon the entitlement of each Class to pay any unpaid Interest Distribution
Amounts and any Interest Carry Forward Amount;
(v) fifth, to each Class of Class I-A certificates, pro rata, to pay
any Realized Losses on the Group I Mortgage Loans applied to reduce the
Certificate Principal Balances for such Distribution Date and prior Distribution
Dates for such Class of Class I-A Certificates;
(vi) sixth, to each Class of Class I-B Certificates sequentially in
numerical order, to pay any unpaid Interest Distribution Amounts and any
Interest Carry Forward Amounts;
(vii) seventh, to each Class of Class I-B Certificates sequentially in
numerical order, to pay any Realized Losses on the Group I Mortgage Loans
applied to reduce the Certificate Principal Balances for such Distribution Date
and prior Distribution Dates for such class of Class I-B Certificates;
(viii) eighth, to each class of Class I-A Certificates, pro rata,
based upon the entitlement of each Class and then sequentially in numerical
order to each class of Class I-B Certificates, any unpaid Basis Risk Shortfall
Carryover Amounts with respect to the Class I Certificates;
(ix) ninth, to the Swap Provider, to the extent not previously paid,
any swap termination payment due to a Swap Provider Trigger Event (to the extent
not received from a replacement Swap Provider in respect of a replacement Swap
Agreement or similar agreement); and
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(x) tenth, to the Class I-C-2 Certificates, any remaining amounts.
Amounts distributed in respect of clauses (iii), (v) and (vii) above shall not
exceed the aggregate of current or prior Realized Losses on the Group I Mortgage
Loans not previously reimbursed by Subsequent Recoveries or amounts previously
distributed pursuant to clauses (iii), (v) and (vii), together with amounts
previously distributed from the Cap Account pursuant to Section 8.04(e)(i),
(iii) and (v).
(e) On each Distribution Date (and after all distributions of Group I
Excess Cashflow and all distributions pursuant to clause (d) above), funds in
the Supplemental Interest Trust with respect to the Cap Agreement will be
distributed in the following order of priority:
(i) first, to the Classes of Class I Certificates then entitled to
receive distributions in respect of principal in the priority described in
Section 8.05(b), any remaining Group I Overcollateralization Deficiency;
(ii) second, to each Class of Class I-A Certificates, pro rata, based
upon the entitlement of each Class to pay any unpaid Interest Distribution
Amounts and any Interest Carry Forward Amounts;
(iii) third, to each Class of Class I-A Certificates, pro rata, any
remaining realized losses on the Group I Mortgage Loans applied to reduce the
Certificate Principal Balances for such Distribution Date and prior Distribution
Dates for such class of Class I-A Certificates;
(iv) fourth, to each Class of Class I-B Certificates sequentially in
numerical order, to pay any unpaid Interest Distribution Amounts and any
Interest Carry Forward Amounts;
(v) fifth, to each Class of Class I-B Certificates sequentially in
numerical order, any remaining Realized Losses on the Group I Mortgage Loans
applied to reduce the Certificate Principal Balances for such Distribution Date
and prior Distribution Dates for such Class of Class I-B certificates;
(vi) sixth, to each Class of Class I-A Certificates, pro rata, based
upon the entitlement of each Class and then sequentially in numerical order to
each Class of Class I-B Certificates, any unpaid Group I Basis Risk Shortfall
Carryover Amounts; and
(vii) seventh, to the Class I-C-2 Certificates, any remaining amounts.
Amounts distributed in respect of clauses (i), (iii) and (v) above shall not
exceed the aggregate of current or prior Realized Losses on the Group I Mortgage
Loans not previously reimbursed by Subsequent Recoveries or amounts previously
distributed pursuant to clauses (i), (iii) and (v) above together with amounts
previously distributed from Swap Account pursuant to Section 8.04(d)(iii), (v)
and (vii).
(f) For federal income tax purposes, the Supplemental Interest Trust (for
the avoidance of doubt, not including the Posted Collateral Account) shall be
owned by the holders of the Class I-C-2 Certificates and shall be an asset of
the Class I-C-2 Grantor Trust as provided in Section 8.10.
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(g) Any obligation of the Supplemental Interest Trust Trustee under the
Swap Agreement or Cap Agreement shall be deemed to be an obligation of the
Supplemental Interest Trust, and not Xxxxx Fargo Bank, National Association in
its individual capacity.
(h) With respect to the failure of the Swap Provider or Cap Provider to
perform any of its obligations under the Swap Agreement or Cap Agreement,
respectively, the breach by the Swap Provider or Cap Provider of any of its
representations and warranties made pursuant to the Swap Agreement or Cap
Agreement, respectively, or the termination of the Swap Agreement or Cap
Agreement, the Supplemental Interest Trust Trustee shall send any notices and
make any demands, on behalf of the Supplemental Interest Trust, as are required
under the Swap Agreement or Cap Agreement, as applicable.
(i) The Supplemental Interest Trust Trustee shall treat the holders of the
Class I Certificates as having entered into a notional principal contract with
respect to the holders of the Class I-C-2 Certificates. Pursuant to each such
notional principal contract, all holders of Class I Certificates shall be
treated as having agreed to pay, on each Distribution Date, to the holder of the
Class I-C-2 Certificates an aggregate amount equal to the excess, if any, of (i)
the amount payable on such Distribution Date on the REMIC Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on such
Class of Certificates on such Distribution Date (such excess, a "Class IO
Distribution Amount"). A Class IO Distribution Amount payable from interest
collections shall be allocated pro rata among such Certificates based on the
excess of (a) the amount of interest otherwise payable to such Certificates over
(ii) the amount of interest payable to such Certificates at a per annum rate
equal to the Group I REMIC Cap, and a Class IO Distribution Amount payable from
principal collections shall be allocated to the most subordinate Class of
Certificates with an outstanding principal balance to the extent of such
balance. In addition, pursuant to such notional principal contract, the Holder
of the Class I-C-2 Certificates shall be treated as having agreed to pay Basis
Risk Shortfall Carryover Amounts to the holders of the Class I Certificates in
accordance with the terms of this Agreement. Any payments to the Certificates
from amounts deemed received in respect of this notional principal contract
shall not be payments with respect to a Regular Interest in a REMIC within the
meaning of Code Section 860G(a)(1). However, any payment from the Class I
Certificates of a Class IO Distribution Amount shall be treated for tax purposes
as having been received by the holders of such Certificates in respect of the
corresponding REMIC Regular Interest and as having been paid by such holders to
the Supplemental Interest Trust Trustee pursuant to the notional principal
contract. Thus, each Class I Certificate shall be treated as representing not
only ownership of a REMIC Regular Interest, but also ownership of an interest
in, and obligations with respect to, a notional principal contract. For tax
reporting purposes, the notional principal contract will be assumed to have a
value of zero as of the Closing Date unless and until required otherwise by an
applicable taxing authority.
(j) For federal income tax purposes, each holder of a Class I Certificate
is deemed to own an undivided beneficial ownership interest in a REMIC Regular
Interest and the right to receive payments in respect of the Basis Risk
Shortfall Carryover Amounts and the obligation to make payments to the
Supplemental Interest Trust. For federal income tax purposes, the Securities
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Administrator will account for payments to each Class I Certificate as follows:
each Class I Certificate will be treated as receiving their entire payment from
the corresponding REMIC Regular Interest (regardless of any Swap Termination
Payment or other obligation under the Swap Agreement) and subsequently paying
their portion of any Swap Termination Payment or any shortfall in Net Swap
Payment through the Class IO Distribution Amount in respect of each such Class'
obligation under the Swap Agreement. In the event that any such Class is
resecuritized in another REMIC, the obligation under the Swap Agreement to pay
any such Swap Termination Payment (or any shortfall in the net Swap Payment),
will be made by one or more of the REMIC regular interests issued by the
resecuritization REMIC pursuant to a notional principal contract entered into by
the holders of such regular interests and the Class I-C-2 Certificates
subsequent to such REMIC regular interest receiving its full payment from any
such Class I Certificate. Resecuritization of any Class I Certificate in a REMIC
will be permissible only if the Securities Administrator hereunder is the
trustee or securities administrator in such resecuritization.
(k) The REMIC III Regular Interest corresponding to a Class I Certificate
will be entitled to receive interest and principal payments at the times and in
the amounts equal to those made on the certificate to which it corresponds,
except that the maximum interest rate payable on that REMIC III Regular Interest
will equal the Group I REMIC Cap. As a result of the foregoing, the amount of
distributions and taxable income on the REMIC III Regular Interest corresponding
to a Class I Certificate may exceed the actual amount of distributions on the
Class I Certificate.
(l) The Securities Administrator, in its capacity as Supplemental Interest
Trust Trustee, is hereby directed to execute and deliver, on behalf of the
Supplemental Interest Trust, the Swap Agreement and Cap Agreement on the Closing
Date. The Supplement Interest Trust Trustee may, and at the direction of a
Majority In Interest of the Certificates shall, exercise any right that the
Supplemental Interest Trust Trustee may have to designate an "Early Termination
Date" under the Swap Agreement or Cap Agreement, as applicable, upon the
occurrence of an "Event of Default" or a "Termination Event" thereunder of which
a Responsible Officer of the Supplemental Interest Trust Trustee has actual
knowledge. Upon the occurrence of an "Early Termination Date" under the Swap
Agreement or Cap Agreement, the Depositor shall use reasonable efforts to
replace the Swap Agreement Cap Agreement, as applicable, with one that is
furnished by a replacement for the Swap Provider or Cap Provider acceptable to
each Rating Agency, and the Supplemental Interest Trust Trustee shall hold in
trust any amount that is paid to it by the Swap Provider or Cap Provider in
respect of any such "Early Termination Date" and apply such amount to the
purchase of the related replacement. If any portion of such amount cannot be so
used (either because a replacement for the Swap Agreement or Cap Agreement is
not available or such amount exceeds the amount necessary to purchase such
replacement), the Supplemental Interest Trust Trustee shall deposit such portion
in the Swap Account or Cap Account, as applicable. If such amount is
insufficient to purchase a replacement for the Swap Agreement or Cap Agreement,
as applicable, the Supplemental Interest Trust Trustee shall apply such amount
to replace so much of the Swap Agreement or Cap Agreement as it is possible to
replace with such amount. If the Swap Provider or Cap Provider transfers its
rights and obligations under the Swap Agreement or Cap Agreement, respectively,
to another party in accordance therewith, or the Swap Agreement or Cap Agreement
is replaced with one that is furnished by a replacement for the Swap Provider or
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Cap Provider acceptable to each Rating Agency in accordance with this Agreement,
then the Supplemental Interest Trust Trustee is hereby instructed to execute and
deliver the related replacement for or novation of the Swap Agreement or Cap
Agreement, as applicable.
In the event that any initial payment is received from a replacement swap
provider in connection with the execution of a new swap agreement, such payment
shall be applied to the Swap Termination Payment owed to the previous swap
provider and paid to the previous swap provider.
In addition, for any period that and for so long as the Securities
Administrator is required to file any report with the Commission pursuant to
this Agreement, the Depositor shall furnish to the Securities Administrator,
within five Business Days prior to each Distribution Date, the "significance
estimate" of the Swap Agreement and Cap Agreement calculated in accordance with
Item 1115 of Regulation AB as of the last Business Day of the immediately
preceding calendar month. Upon its receipt from the Depositor of each
"significance estimate" for the Swap Agreement and Cap Agreement, the Securities
Administrator shall, on the basis of such "significance estimate," calculate the
Swap Agreement and Cap Agreement's "significance percentage" of the Class
Certificate Balance of the Class I Certificates as of the date of such
"significance estimate" in accordance with Item 1115 of Regulation AB. If the
"significance percentage" meets either of the thresholds detailed in Item
1115(b)(1) or 1115(b)(2) of Regulation AB, the Securities Administrator will
provide written notice to the Depositor. The Depositor shall be obligated to
obtain from the Swap Provider or Cap Provider any information required under
Regulation AB to the extent required under the Swap Agreement and Cap Agreement
and to provide to the Securities Administrator any information that may be
required to be included in any Form 10-D, Form 8-K or Form 10-K relating to the
Swap Agreement or Cap Agreement, or written notification instructing the
Securities Administrator that filings regarding the Swap Provider and Cap
Provider are not necessary for such Distribution Date. The Depositor shall be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with the filing of any Form 10-D, Form
8-K or Form 10-K relating to the Swap Agreement or Cap Agreement pursuant to
this section.
(m) If the Swap Provider or Cap Provider is obligated pursuant to the Swap
Agreement or Cap Agreement to post Collateral (as defined in the related
Agreement), the Supplemental Interest Trust Trustee shall receive, hold and
perform all obligations with respect thereto as is required pursuant to the
applicable Agreement. The rights of the Supplemental Interest Trust to such
Collateral shall be as provided in the applicable Agreement. In the event that
cash is deposited as Collateral, it shall be deposited in an Eligible Account,
entitled "Posted Collateral Account, for the benefit of Luminent Mortgage Trust
2007-1." Unless the Swap Provider or Cap Provider, as applicable, from time to
time otherwise directs in writing that the monies be invested in a different
Permitted Investment, the monies in the Account shall be invested in Xxxxx Fargo
Advantage Prime Investments Money Market Fund. All amounts earned on amounts on
deposit in the Posted Collateral Account shall be taxable to the Swap Provider
or Cap Provider, as applicable.
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SECTION 8.05 Priorities of Distribution.
---------------------------
(a) On each Distribution Date (or the Business Day prior thereto in the
case of payments to the Swap Provider), the Securities Administrator shall
withdraw Group I Interest Remittance Amount from the Distribution Account and
apply such funds in the following order of priority:
(i) first, concurrently, to each Class of Class I-A Certificates, pro
rata, their respective Interest Distribution Amount and Interest Carry Forward
Amounts for such Distribution Date;
(ii) second, sequentially, to each Class of Class I-B Certificates in
numerical order, their respective Interest Distribution Amount and Interest
Carry Forward Amounts for such Distribution Date; and
(iii) third, for distribution as Group I Excess Cashflow pursuant to
clause (c) below.
(b) On each Distribution Date (or the Business Day prior thereto in the
case of payments to the Swap Provider), the Securities Administrator shall
withdraw the Group I Principal Distribution Amount from the Distribution Account
and apply such funds in the following order of priority:
(i) if such Distribution Date is prior to the Group I Stepdown Date or
a Group I Trigger Event is in effect on such Distribution Date:
(A) first, to each Class of Class I-A Certificates, pro rata, in
reduction of their Certificate Principal Balances, until reduced to zero;
(B) second, to each Class of Class I-B Certificates, sequentially in
numerical order in reduction of their Certificate Principal Balances, until
reduced to zero; and
(C) third, for distribution as Group I Excess Cashflow pursuant to
clause (c) below; or
(ii) if such Distribution Date is on or after the Stepdown Date and no
Trigger Event is in effect on such Distribution Date:
(A) first, to each Class of Class I-A Certificates, an amount up to
the Class I-A Principal Distribution Amount, pro rata, in reduction of
their Certificate Principal Balances, until reduced to zero;
(B) second, to Class I-B-1 Certificates, its Class I-B-1 Principal
Distribution Amount, in reduction of its Certificate Principal Balance,
until reduced to zero;
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(C) third, to Class I-B-2 Certificates, its Class I-B-2 Principal
Distribution Amount, in reduction of its Certificate Principal Balance,
until reduced to zero;
(D) fourth, to Class I-B-3 Certificates, its Class I-B-3 Principal
Distribution Amount, in reduction of its Certificate Principal Balance,
until reduced to zero;
(E) fifth, to Class I-B-4 Certificates, its Class I-B-4 Principal
Distribution Amount, in reduction of its Certificate Principal Balance,
until reduced to zero; and
(F) sixth, for distribution as Group I Excess Cashflow pursuant to
clause (c) below.
(c) On each Distribution Date (or the Business Day prior thereto in the
case of payments to the Swap Provider), Group I Excess Cashflow, if any, will be
distributed in the following order of priority:
(i) first, to distribute the Group I Overcollateralization Deficiency
Amount as principal, in accordance with clause (b) above;
(ii) second, to each Class of Class I-A Certificates, pro rata, based
upon the entitlement of each Class (1) first, to pay any Interest Distribution
Amounts and Interest Carry Forward Amounts and (2) second, to pay any Realized
Losses applied to reduce the Certificate Principal Balances of the Class I-A
Certificates on such Distribution Date and prior Distribution Dates;
(iii) third, to each Class of Class I-B Certificates sequentially in
numerical order (1) first, to pay any Interest Distribution Amounts and Interest
Carry Forward Amounts and (2) second, to pay any Realized Losses applied to
reduce the Certificate Principal Balances of the Class I-B Certificates on such
Distribution Date and prior Distribution Dates;
(iv) fourth, from amounts otherwise payable to the Class I-C-1
Certificates, first, to each class of Class I-A Certificates, pro rata, based
upon the entitlement of each class and then sequentially in numerical order to
each class of Class I-B Certificates, any unpaid Basis Risk Shortfall Carryover
Amounts with respect to the Class I Certificates;
(v) fifth, from amounts otherwise distributable to the Class I-C-1
Certificates, to the Supplemental Interest Trust, for payment to the Swap
Provider, to the extent not previously paid, any Swap Termination Payment owed
to the Swap Provider pursuant to the Swap Agreement in the event that the Swap
Provider is the defaulting party or the sole Affected Party under the Swap
Agreement (to the extent not received from a replacement Swap Provider in
respect of a replacement Swap Agreement or similar agreement);
(vi) sixth, to the Class R and Class RX Certificates, pro rata, in
reduction of their respective Certificate Principal Balances, until $100 has
been distributed pursuant to this clause;
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(vii) seventh, to the Class I-C-1 Certificates, up to the Class I-C-1
Distributable Amount;
(viii) eighth, on the Distribution Date immediately following the
expiration of the latest Prepayment Premium or any Distribution Date thereafter
(or the final Distribution Date, if earlier), to the Class I-P Certificates,
$100 in reduction of the Certificate Principal Balance of such Class; and
(ix) ninth, to the Class R and Class RX Certificates (from their
respective REMIC(s)), any remaining amount related to the Group I Mortgage
Loans.
(d) On each Distribution Date, the Securities Administrator shall withdraw
any amounts then on deposit in the Distribution Account that represent
Prepayment Premiums or Non-Mortgagor Prepayment Premium Payment Amounts with
respect to the Group I Mortgage Loans and shall distribute such amounts to the
holders of the Class I-P Certificates. Any such amounts in respect of
Non-Mortgagor Prepayment Premium Payment Amounts shall not be payments with
respect to a "regular interest" in a REMIC within the meaning of Code Section
860G(a)(1). Amounts distributed pursuant to this paragraph will not be applied
to reduce the Certificate Principal Balance of the Class I-P Certificates.
(e) On each Distribution Date, the Securities Administrator shall withdraw
the Group II Interest Remittance Amount from the Distribution Account and apply
such funds in the following order of priority:
(i) first, on each Distribution Date on and after the Distribution
Date in February 2017, from amounts otherwise distributable to the Class II-C
Certificates for deposit into the Final Maturity Reserve Trust, the Final
Maturity Reserve Amount;
(ii) second, concurrently, to the Class II-A Certificates, pro rata,
their respective Interest Distribution Amounts and Interest Carry Forward
Amounts thereon for such Distribution Date;
(iii) third, sequentially, to each Class of Class II-B certificates in
numerical order, their respective Interest Distribution Amounts and Interest
Carry Forward Amounts thereon for such Distribution Date; and
(iv) fourth, for distribution as Group II Excess Cashflow pursuant to
clause (g) below.
(f) On each Distribution Date, the Securities Administrator shall withdraw
the Group II Principal Distribution Amount for the Group II Mortgage Loans from
the Distribution Account and apply such funds in the following order of
priority:
(i) if such Distribution Date is prior to the Group II Stepdown Date
or a Group II Trigger Event is in effect on such Distribution Date:
(A) first, to each Class II-A Certificate, pro rata, in reduction of
their Certificate Principal Balances, until reduced to zero;
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(B) second, to the Class II-B Certificates, sequentially in numerical
order in reduction of their Certificate Principal Balances, until reduced
to zero; and
(C) third, for distribution as Group II Excess Cashflow pursuant to
clause (g) below; or
(ii) if such Distribution Date is on or after the Group II Stepdown
Date and no Group II Trigger Event is in effect on such Distribution Date:
(A) first, to the Class II-A Certificates, an amount up to the Senior
Principal Distribution Amount, pro rata, in reduction of their Certificate
Principal Balances, until reduced to zero;
(B) second, to the Class II-B-1 Certificates, its Class II-B-1
Principal Distribution Amount, in reduction of its Certificate Principal
Balance, until reduced to zero;
(C) third, to the Class II-B-2 Certificates, its Class II-B-2
Principal Distribution Amount, in reduction of its Certificate Principal
Balance, until reduced to zero;
(D) fourth, to the Class II-B-3 Certificates, its Class II-B-3
Principal Distribution Amount, in reduction of its Certificate Principal
Balance, until reduced to zero;
(E) fifth, to the Class II-B-4 Certificates, its Class II-B-4
Principal Distribution Amount, in reduction of its Certificate Principal
Balance, until reduced to zero;
(F) sixth, to the Class II-B-5 Certificates, its Class II-B-5
Principal Distribution Amount, in reduction of its Certificate Principal
Balance, until reduced to zero;
(G) seventh, to the Class II-B-6 Certificates, its Class II-B-6
Principal Distribution Amount, in reduction of its Certificate Principal
Balance, until reduced to zero; and
(H) eighth, for distribution as Group II Excess Cashflow pursuant to
clause (g) below.
(g) Group II Excess Cashflow, if any, will be distributed in the following
order of priority:
(i) first, to distribute the Group II Overcollateralization Deficiency
Amount as principal, in accordance with clause (f) above;
(ii) second, to each Class of Class II-A Certificates, pro rata, based
upon the entitlement of each Class (1) first, to pay any unpaid Interest
Distribution Amounts and Interest Carry Forward Amounts and (2) second, to pay
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any Realized Losses applied to reduce the Certificate Principal Balances of the
Class II-A Certificates for such Distribution Date and prior Distribution Dates;
(iii) third, to each Class of Class II-B Certificates sequentially in
numerical order (1) first, to pay any unpaid Interest Distribution Amounts and
Interest Carry Forward Amounts and (2) second, to pay any Realized Losses
applied to reduce the Certificate Principal Balances of the class II-B
certificates for such Distribution Date and prior Distribution Dates;
(iv) fourth, from amounts otherwise payable to the Class II-C
certificates, first, to each Class of Class II-A Certificates, pro rata, based
upon the entitlement of each Class, and then sequentially in numerical order to
each class of Class II-B Certificates, any unpaid Basis Risk Shortfall Carryover
Amounts;
(v) fifth, to the Class R and Class RX Certificates, pro rata, in
reduction of their respective Certificate Principal Balances, until $100 has
been distributed pursuant to this clause;
(vi) sixth, to the Class II-C Certificates, up to the Class II-C
Distributable Amount;
(vii) seventh, on the Distribution Date immediately following the
expiration of the latest Prepayment Premium or any Distribution Date thereafter
(or the final Distribution Date, if earlier), to the Class II-P Certificates,
$100 in reduction of the Certificate Principal Balance of such Class; and
(viii) eighth, to the Class R and RX Certificates (from their
respective REMICs), any remaining amount related to the Group II Mortgage Loans.
(h) On each Distribution Date, the Securities Administrator shall withdraw
any amounts then on deposit in the Distribution Account that represent
Prepayment Premiums or Non-Mortgagor Prepayment Premium Payment Amounts with
respect to the Group II Mortgage Loans and shall distribute such amounts to the
Holders of the Class II-P Certificates. Any such amounts in respect of
Non-Mortgagor Prepayment Premium Payment Amounts shall not be payments with
respect to a "regular interest" in a REMIC within the meaning of Code Section
860G(a)(1). Amounts distributed pursuant to this paragraph will not be applied
to reduce the Certificate Principal Balance of the Class II-P Certificates.
(i) Amounts distributed to the Residual Certificates pursuant to Section
8.05(c)(ix) or Section 8.05(g)(viii) on any Distribution Date shall be allocated
among the Residual Interests represented thereby such that each such interest is
allocated the excess of funds available to the related REMIC over required
distributions to the REMIC Regular Interests of such REMIC on such Distribution
Date.
(j) Amounts in the Reserve Accounts will be applied on each Distribution
Date as set forth in Section 8.02. Amounts in the Swap Account will be applied
on each Distribution Date as set forth in Section 8.04. Amounts in the Cap
Account will be applied on each Distribution Date as set forth in Section 8.04.
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(k) Notwithstanding any other provision of this Agreement, the Securities
Administrator, as applicable, shall comply with all federal withholding
requirements with respect to payments to Certificateholders of interest or
original issue discount that the Securities Administrator reasonably believes
are applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding. In the event the Securities Administrator
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Securities Administrator shall indicate the amount withheld to
such Certificateholder.
SECTION 8.06 Allocation of Realized Losses.
------------------------------
(a) On or prior to each Determination Date, the Securities Administrator
shall determine the total amount of Realized Losses with respect to the
Prepayment Period related to the Distribution Date based upon information from
the Servicer. The Applied Realized Loss Amount with respect to the Group I
Mortgage Loans for any Distribution Date shall be allocated in reduction of the
Certificate Principal Balances of the Class I-B-4 Certificates, Class I-B-3
Certificates, Class I-B-2 Certificates, Class I-B-1 Certificates and then to the
Class I-A-2 and Class I-A-1 Certificates, in that order, and until the
respective Certificate Principal Balance of each such Class has been reduced to
zero. The Applied Realized Loss Amount with respect to the Group II Mortgage
Loans for any Distribution Date shall be allocated in reduction of the
Certificate Principal Balances of the Class II-B-6 Certificates, Class II-B-5
Certificates, Class II-B-4 Certificates, Class II-B-3 Certificates, Class II-B-2
Certificates, Class II-B-1 Certificates, and then to the Class II-A-3
Certificates, Class II-A-2 Certificates and Class II-A-1 Certificates, in that
order, and until the respective Certificate Principal Balance of each such Class
has been reduced to zero.
(b) Any Applied Realized Loss Amount allocated to a Class of Certificates
or any reduction in the Certificate Principal Balance of a Class of Certificates
pursuant to Section 8.06(a) shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Principal Balance.
(c) Any allocation of any Applied Realized Loss Amount to a Certificate or
any reduction in the Certificate Principal Balance of a Certificate pursuant to
Section 8.06(b) shall be accomplished by reducing the Certificate Principal
Balance thereof immediately following the distributions made on the related
Distribution Date in accordance with the definition of Certificate Principal
Balance.
(d) Any Subsequent Recoveries shall be included as part of the related
Principal Distribution Amount on the succeeding Distribution Date. Holders of
Certificates will not be entitled to any payment in respect of interest on a
Subsequent Recovery for any Accrual Period preceding the Distribution Date on
which the Subsequent Recovery is added to the related Principal Distribution
Amount. On each Distribution Date, the Unpaid Realized Loss Amounts on the
Classes of Certificates will be reduced by the amount of Subsequent Recoveries
for such Distribution Date, such reductions to be allocated to each Class of
Certificates having an Unpaid Realized Loss Amount in reverse order of the
allocation of Applied Realized Loss Amounts set forth in Section 8.06(a) until
the Unpaid Realized Loss Amount for such Class is reduced to zero, and the
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Certificate Principal Balances of such Class or Classes shall be increased by
the same amount.
SECTION 8.07 REMIC Distributions.
--------------------
(a) Distributions on the REMIC I Regular Interests and the Class R-I
Interest. On each Distribution Date, the following amounts, in the following
order of priority, shall be deemed distributed by REMIC I to REMIC II on account
of the REMIC I Regular Interests and distributed to the holders of the Class R
Certificates (in respect of the Class R-I Interest), as the case may be:
(i) first, to the extent of the Group I Interest Remittance Amount
(prior to deduction for any Net Swap Payment or Swap Termination Payment paid to
the Supplemental Interest Trust for payment to the Swap Provider), to each of
REMIC I Regular Interest I-1-A through I-84-B, pro rata, in an amount equal to
(A) Uncertificated Accrued Interest for such REMIC I Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates;
(ii) second, to the extent of the Group I Interest Remittance Amount
and Group I Principal Remittance Amount (prior to deduction for any Net Swap
Payment or Swap Termination Payment paid to the Supplemental Interest Trust for
payment to the Swap Provider) remaining after distributions pursuant to clause
(i) above, payments of principal shall be allocated to REMIC I Regular Interest
I-1-A through I-84-B starting with the lowest numerical denomination until the
Uncertificated Balance of each such REMIC I Regular Interest is reduced to zero,
provided that, for REMIC I Regular Interests with the same numerical
denomination, such payments of principal shall be allocated pro rata between
such REMIC I Regular Interests;
(iii) to the REMIC I Regular Interest I-84-B, all amounts representing
Prepayment Premiums in respect of the Group I Mortgage Loans received by the
Securities Administrator; and
(iv) any remaining amount to the Class R Certificate (in respect of
the Class R-I Interest).
(b) Distributions on the REMIC II Regular Interests and the Class R-II
Interest. On each Distribution Date, the following amounts, in the following
order of priority, shall be deemed distributed by REMIC II to REMIC III on
account of the REMIC II Regular Interests and distributed to the holders of the
Class R Certificates (in respect of the Class R-II Interest), as the case may
be:
(i) first, to the extent of the Group I Interest Remittance Amount
(prior to deduction for any Net Swap Payment or Swap Termination Payment paid to
the Supplemental Interest Trust for payment to the Swap Provider), to REMIC II
Regular Interest I-LTIO, in an amount equal to (A) Uncertificated Accrued
Interest for such REMIC II Regular Interest for such Distribution Date, plus (B)
any amounts in respect thereof remaining unpaid from previous Distribution
Dates; to REMIC II Regular Interest I-LTAA, the Corresponding REMIC II Marker
Interests, REMIC II Regular Interest I-LTZZ, REMIC II Regular Interest I-LTP and
REMIC II Regular Interest I-LTR, pro rata, in an amount equal to (A) the
Uncertificated Accrued Interest for such REMIC II Regular Interest such
155
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates. Amounts payable as Uncertificated Accrued Interest
in respect of REMIC II Regular Interest I-LTZZ shall be reduced and deferred
when the REMIC II Overcollateralized Amount is less than the REMIC II
Overcollateralization Target Amount, by the lesser of (x) the amount of such
difference and (y) the Maximum I-LTZZ Uncertificated Accrued Interest Deferral
Amount, and such amount shall be payable to each Corresponding REMIC II Marker
Interest in the same proportion as the Group I Overcollateralization Deficiency
Amount is allocated to the Corresponding Certificates and the Uncertificated
Balance of REMIC II Regular Interest I-LTZZ shall be increased by such amount;
(ii) second, to the extent of the Group I Interest Remittance Amount
and Group I Principal Remittance Amount (prior to deduction for any Net Swap
Payment or Swap Termination Payments paid to the Supplemental Interest Trust for
payment to the Swap Provider) remaining after distributions pursuant to clause
(i) above, first, to the REMIC II Regular Interest I-LTR until its
Uncertificated Balance equals one-half the aggregate Certificate Principal
Balance of the Class R and Class RX Certificates, and any remaining amount to
the REMIC II Regular Interests, allocated as follows:
(1) 98.00% of such remainder (other than amounts payable under
clause (3) below), to REMIC II Regular Interest I-LTAA and REMIC II
Regular Interest I-LTP until the Uncertificated Balances of such REMIC
II Regular Interests are reduced to zero; provided, however, that the
Uncertificated Balance of REMIC II Regular Interest I-LTP shall not be
reduced until the Distribution Date immediately following the
expiration of the latest Prepayment Premium with respect to the Group
I Mortgage Loans or any Distribution Date thereafter, at which point
such amount shall be distributed to the REMIC II Regular Interest
I-LTP, until $100 has been distributed pursuant to this clause;
(2) 2.00% of such remainder (other than amounts payable under
clause (3) below) first, to each Corresponding REMIC II Marker
Interest, 1.00% in the same proportion as principal payments are
allocated to the Corresponding Certificates, until the Uncertificated
Balance of such REMIC II Regular Interests are reduced to zero and
second, to REMIC II Regular Interest I-LTZZ, 1.00% until the
Uncertificated Balance of such REMIC II Regular Interest is reduced to
zero; and
(3) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-II Interest);
provided, however, that (i) 98.00% and (ii) 2.00% of any principal payments that
are attributable to a Group I Overcollateralization Release Amount shall be
allocated to (i) REMIC II Regular Interest I-LTAA and REMIC II Regular Interest
I-LTP, in that order and (ii) REMIC II Regular Interest I-LTZZ, respectively;
provided, however, that the Uncertificated Balance of REMIC II Regular Interest
I-LTP shall not be reduced until the Distribution Date immediately following the
expiration of the latest Prepayment Premium with respect to the Group I Mortgage
Loans or any Distribution Date thereafter, at which point such amount shall be
distributed to the REMIC II Regular Interest I-LTP, until $100 has been
distributed pursuant to this clause; and
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(iii) On each Distribution Date, all amounts representing Prepayment
Premiums in respect of the Group I Mortgage Loans received by REMIC I Regular
Interest I-84-B will be distributed to the holders of the REMIC II Regular
Interest I-LTP. Such amount shall not reduce the Uncertificated Balance of the
REMIC II Regular Interest I-LTP.
(c) Distributions on the REMIC III Regular Interests and the Class R-III
Interest. On each Distribution Date, 100% of the amounts deemed distributed on
REMIC II Regular Interest I-LTIO shall be deemed distributed by REMIC III to
REMIC VII in respect of the Class I-Swap-IO REMIC III Regular Interest. On each
Distribution Date, all amounts representing Prepayment Charges deemed
distributed on REMIC II Regular Interest I-LTP shall be deemed distributed by
REMIC III to REMIC VI in respect of the Class I-P REMIC III Regular Interest.
Such amount shall not reduce the Uncertificated Balance of the Class I-P REMIC
III Regular Interest. Other amounts deemed distributed by REMIC II to REMIC III
shall be deemed distributed with respect to the REMIC III Regular Interests
(other than the Class I-Swap-IO REMIC III Regular Interest) so as to (i) pay the
Uncertificated Accrued Interest on such REMIC III Regular Interest plus any
amounts in respect thereof remaining unpaid from previous Distribution Dates and
(ii) reduce the Uncertificated Balance or Notional Amount of each such REMIC III
Regular Interest to the extent necessary so that it equals the Certificate
Principal Balance or Notional Amount of the Corresponding Class of Certificates.
Any remaining amounts will be deemed distributed with respect to the Class R
Certificates (in respect of the Class R-III Interest).
(d) On each Distribution Date, 100% of the amounts distributed to REMIC IV
in respect of the Class I-B-4 REMIC III Regular Interest shall be deemed
distributed by REMIC IV to the Class I-B-4 Certificates in respect of the Class
I-B-4 REMIC IV Regular Interest. Any remaining amounts in REMIC IV shall be
distributed to the Class RX Certificates (in respect of the Class RX-IV
Interest).
(e) On each Distribution Date, 100% of the amounts distributed to REMIC V
in respect of the Class I-C-1 REMIC III Regular Interest shall be deemed
distributed by REMIC V to the Class I-C-1 Certificates in respect of the Class
I-C-1 REMIC V Regular Interest. Any remaining amounts in REMIC V shall be
distributed to the Class RX Certificates (in respect of the Class RX-V
Interest).
(f) On each Distribution Date, 100% of the amounts distributed to REMIC VI
in respect of the Class I-P REMIC III Regular Interest shall be deemed
distributed by REMIC VI to the Class I-P Certificates in respect of the Class
I-P REMIC VI Regular Interest. Any remaining amounts in REMIC VI shall be
distributed to the Class RX Certificates (in respect of the Class RX-VI
Interest).
(g) On each Distribution Date, 100% of the amounts distributed to REMIC VII
in respect of the Class I-Swap-IO REMIC III Regular Interest shall be deemed
distributed by REMIC VII to the Supplemental Interest Trust in respect of the
Class I-Swap-IO REMIC VII Regular Interest for deposit into the Swap Account.
Any remaining amounts in REMIC VII shall be distributed to the Class RX
Certificates (in respect of the Class RX-VII Interest).
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(h) Distributions on the REMIC A1 Regular Interests and the Class R-A1
Interest. On each Distribution Date, the following amounts, in the following
order of priority, shall be deemed distributed by REMIC A1 to REMIC A2 on
account of the REMIC A1 Regular Interests and distributed to the holders of the
Class R Certificates (in respect of the Class R-A1 Interest), as the case may
be:
(i) to the extent of the Group II Interest Remittance Amount
attributable to the Group II Mortgage Loans with original terms to maturity in
excess of 30 years, to REMIC A1 Regular Interest II-40, an amount equal to (A)
Uncertificated Accrued Interest for such REMIC A1 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates to the extent equivalent amounts are distributed to
the REMIC A2 Regular Interests;
(ii) to the extent of the Group II Interest Remittance Amount
attributable to the Group II Mortgage Loans with original terms to maturity of
30 years or less, to REMIC A1 Regular Interest II-30, an amount equal to (A)
Uncertificated Accrued Interest for such REMIC A1 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates to the extent equivalent amounts are distributed to
the REMIC A2 Regular Interests;
(iii) to the extent of the Group II Interest Remittance Amount and
Group II Principal Remittance Amount attributable to the Group II Mortgage Loans
with original terms to maturity in excess of 30 years remaining after
distributions pursuant to clause (i) above, to REMIC A1 Regular Interest II-40
until the Uncertificated Balance of such REMIC A1 Regular Interest is reduced to
zero;
(iv) to the extent of the Group II Interest Remittance Amount and
Group II Principal Remittance Amount attributable to the Group II Mortgage Loans
with original terms to maturity of 30 years or less remaining after
distributions pursuant to clause (ii) above, to REMIC A1 Regular Interest II-30
until the Uncertificated Balance of such REMIC A1 Regular Interest is reduced to
zero;
(v) to REMIC A1 Regular Interest II-40, all amounts representing
Prepayment Premiums in respect of the Group II Mortgage Loans received by the
Securities Administrator;
(vi) any remaining amount to the Class R Certificate (in respect of
the Class R-A1 Interest); and
(vii) Notwithstanding anything to the contrary above, on each
Distribution Date, distributions, losses and Deferred Interest shall be deemed
allocated to the REMIC A1 Regular Interests such that:
(A) as of any date, the aggregate Uncertificated Balance of the REMIC
A1 Regular Interests shall equal the aggregate Stated Principal Balance of
the Group II Mortgage Loans, and
(B) the aggregate amount deemed distributed in respect of
Uncertificated Accrued Interest with respect to the REMIC A1 Regular
Interests shall equal and shall in no event exceed the aggregate amount of
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interest actually distributed to the REMIC A3 Regular Interests and any
accrued and unpaid interest with respect to Uncertificated Accrued Interest
shall be carried and paid to the extent paid in the aggregate on the REMIC
A3 Regular Interests on following Distribution Dates.
(i) Distributions on the REMIC A2 Regular Interests and the Class R-A2
Interest. On each Distribution Date, the following amounts, in the following
order of priority, shall be deemed distributed by REMIC A2 to REMIC A3 on
account of the REMIC A2 Regular Interests and distributed to the holders of the
Class R Certificates (in respect of the Class R-A2 Interest), as the case may
be:
(i) first, to the extent of the Group II Interest Remittance Amount,
to REMIC A2 Regular Interest II-LTF, in an amount equal to (A) Uncertificated
Accrued Interest for such REMIC A2 Regular Interest for such Distribution Date,
plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates to the extent equivalent amounts are distributed to the REMIC
A3 Regular Interests; to REMIC A2 Regular Interest II-LTAA, the Corresponding
REMIC A2 Marker Interests, REMIC A3 Regular Interest II-LTZZ, REMIC A2 Regular
Interest II-LTP and REMIC A2 Regular Interest II-LTR, pro rata, in an amount
equal to (A) the Uncertificated Accrued Interest for such REMIC A2 Regular
Interest such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates to the extent equivalent
amounts are distributed to the REMIC A3 Regular Interests. Amounts payable as
Uncertificated Accrued Interest in respect of REMIC A2 Regular Interest II-LTZZ
shall be reduced and deferred when the REMIC A2 Overcollateralized Amount is
less than the REMIC A2 Overcollateralization Target Amount, by the lesser of (x)
the amount of such difference and (y) the Maximum II-LTZZ Uncertificated Accrued
Interest Deferral Amount, and such amount shall be payable to each Corresponding
REMIC A2 Marker Interest in the same proportion as the Group II
Overcollateralization Deficiency Amount is allocated to the Corresponding
Certificates and the Uncertificated Balance of REMIC A2 Regular Interest II-LTZZ
shall be increased by such amount;
(ii) second, to the extent of the Group II Interest Remittance Amount
and Group II Principal Remittance Amount remaining after distributions pursuant
to clause (i) above, first, to the REMIC A2 Regular Interest II-LTR until its
Uncertificated Balance equals one-half of the Certificate Principal Balance of
the Class R and Class RX Certificates, and any remaining amount to the REMIC A2
Regular Interests, allocated as follows:
(1) 98.00% of such remainder (other than amounts payable under
clause (3) below), to REMIC A2 Regular Interest II-LTAA and REMIC A2
Regular Interest II-LTP until the Uncertificated Balances of such
REMIC A2 Regular Interests are reduced to zero; provided, however,
that the Uncertificated Balance of REMIC A2 Regular Interest II-LTP
shall not be reduced until the Distribution Date immediately following
the expiration of the latest Prepayment Premium with respect to the
Group II Mortgage Loans or any Distribution Date thereafter, at which
point such amount shall be distributed to the REMIC A2 Regular
Interest II-LTP, until $100 has been distributed pursuant to this
clause;
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(2) 2.00% of such remainder (other than amounts payable under
clause (3) below) first, to each Corresponding REMIC A2 Marker
Interest, 1.00% in the same proportion as principal payments are
allocated to the Corresponding Certificates, until the Uncertificated
Balance of such REMIC A2 Regular Interests are reduced to zero and
second, to REMIC A2 Regular Interest II-LTZZ, 1.00% until the
Uncertificated Balance of such REMIC A2 Regular Interest is reduced to
zero; and
(3) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-A2 Interest);
provided, however, that (i) 98.00% and (ii) 2.00% of any principal payments that
are attributable to a Group II Overcollateralization Release Amount shall be
allocated to (i) REMIC A2 Regular Interest II-LTAA, and REMIC A2 Regular
Interest II-LTP, in that order and (ii) REMIC A2 Regular Interest II-LTZZ,
respectively; provided, however, that the Uncertificated Balance of REMIC A2
Regular Interest II-LTP shall not be reduced until the Distribution Date
immediately following the expiration of the latest Prepayment Premium with
respect to the Group II Mortgage Loans or any Distribution Date thereafter, at
which point such amount shall be distributed to the REMIC II Regular Interest
I-LTP, until $100 has been distributed pursuant to this clause; and
(iii) On each Distribution Date, all amounts representing Prepayment
Premiums in respect of the Group II Mortgage Loans received by REMIC A1 Regular
Interest II-40 will be distributed to the holders of REMIC A2 Regular Interest
II-LTP. Such amount shall not reduce the Uncertificated Balance of REMIC A2
Regular Interest II-LTP.
(iv) Notwithstanding anything to the contrary above, on each
Distribution Date, distributions, losses and Deferred Interest shall be deemed
allocated to the REMIC A2 Regular Interests such that:
(A) as of any date, the aggregate Uncertificated Balance of the REMIC
A2 Regular Interests shall equal the aggregate Stated Principal Balance of
the Group II Mortgage Loans, and
(B) the aggregate amount deemed distributed in respect of
Uncertificated Accrued Interest with respect to the REMIC A2 Regular
Interests shall equal and shall in no event exceed the aggregate amount of
interest actually distributed to the REMIC A3 Regular Interests and any
accrued and unpaid interest with respect to Uncertificated Accrued Interest
shall be carried and paid to the extent paid in the aggregate on the REMIC
A3 Regular Interests on following Distribution Dates.
(j) Distributions on the REMIC A3 Regular Interests and the Class R-A3
Interest. On each Distribution Date, 100% of the amounts deemed distributed on
REMIC A2 Regular Interest II-LTF shall be deemed distributed by REMIC A3 to
REMIC A5 in respect of the Class II-F REMIC A3 Regular Interest. On each
Distribution Date, all amounts representing Prepayment Premiums deemed
distributed on REMIC A2 Regular Interest II-LTP shall be deemed distributed by
REMIC A3 to REMIC A6 in respect of the Class II-P REMIC A3 Regular Interest.
Such amount shall not reduce the Uncertificated Balance of the Class II-P REMIC
160
A3 Regular Interest. Other amounts deemed distributed by REMIC A2 to REMIC A3
shall be deemed distributed with respect to the REMIC A3 Regular Interests
(other than the Class II-F REMIC A3 Regular Interest) so as to (i) pay the
Uncertificated Accrued Interest on such REMIC A3 Regular Interest plus any
amounts in respect thereof remaining unpaid from previous Distribution Dates and
(ii) reduce the Uncertificated Balance or Notional Amount of each such REMIC A3
Regular Interest to the extent necessary so that it equals the Certificate
Principal Balance or Notional Amount of the Corresponding Class of Certificates.
Any remaining amounts will be deemed distributed with respect to the Class R
Certificates (in respect of the Class R-A3 Interest).
(k) On each Distribution Date, 100% of the amounts distributed to REMIC A4
in respect of the Class II-B-6 REMIC A3 Regular Interest shall be deemed
distributed by REMIC A4 to the Class II-B-6 Certificates in respect of the Class
I-B-6 REMIC A4 Regular Interest. Any remaining amounts in REMIC A4 shall be
distributed to the Class RX Certificates (in respect of the Class RX-A4
Interest).
(l) On each Distribution Date, 100% of the amounts distributed to REMIC A5
in respect of the Class II-C REMIC A3 Regular Interest and the Class II-F REMIC
A3 Regular Interest shall be deemed distributed by REMIC A5 to the Class II-C
Certificates in respect of the Class II-C REMIC A5 Regular Interest and the
Class II-F REMIC A5 Regular Interest. Any remaining amounts in REMIC A5 shall be
distributed to the Class RX Certificates (in respect of the Class RX-A5
Interest).
(m) On each Distribution Date, 100% of the amounts distributed to REMIC A6
in respect of the Class II-P REMIC A3 Regular Interest shall be deemed
distributed by REMIC A6 to the Class II-P Certificates in respect of the Class
II-P REMIC A6 Regular Interest. Any remaining amounts in REMIC A6 shall be
distributed to the Class RX Certificates (in respect of the Class RX-A6
Interest).
(n) The following losses shall be deemed to be allocated as follows:
(i) For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC I Regular Interests, the aggregate amount of any Relief
Act Reductions and Net Prepayment Interest Shortfalls incurred in respect of the
Group I Mortgage Loans for any Distribution Date shall be allocated first, to
the REMIC I Regular Interests ending with the designation "B," pro rata, based
on, and to the extent of, one month's interest at the then applicable respective
Pass-Through Rates on the respective Uncertificated Balances of each such REMIC
I Regular Interest, and then, to REMIC I Regular Interests ending with the
designation "A," pro rata, based on, and to the extent of, one month's interest
at the then applicable respective Pass-Through Rate on the respective
Uncertificated Balance of each such REMIC I Regular Interest;
(ii) For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC II Regular Interests, the aggregate amount of any Relief
Act Reductions and Net Prepayment Interest Shortfalls incurred in respect of the
Group I Mortgage Loans for any Distribution Date shall be allocated among REMIC
II Regular Interest I-LTAA, the Corresponding REMIC II Marker Interests and
REMIC II Regular Interest I-LTZZ, pro rata, based on, and to the extent of, one
161
month's interest at the then applicable respective Pass-Through Rate on the
respective Uncertificated Balance of each such REMIC II Regular Interest;
(iii) For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC III Regular Interests, the aggregate amount of any Relief
Act Reductions and Net Prepayment Interest Shortfalls incurred in respect of the
Group I Mortgage Loans for any Distribution Date shall be allocated among the
REMIC III Regular Interests in the same manner and priority as such amounts are
allocated to the Corresponding Certificates;
(iv) For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC A1 Regular Interests, (x)(1) the aggregate amount of any
Relief Act Reductions and Net Prepayment Interest Shortfalls incurred for any
Distribution Date in respect of the Group II Mortgage Loans with original terms
to maturity in excess of 30 years shall be allocated to REMIC A1 Regular
Interest II-40, based on, and to the extent of, one month's interest at the then
applicable respective Pass-Through Rate on the Uncertificated Balance of such
REMIC A1 Regular Interest and (2) the aggregate amount of Group II Allocated Net
Deferred Interest incurred for any Distribution Date in respect of Group II
Mortgage Loans with original terms to maturity in excess of 30 years shall be
allocated to REMIC A1 Regular Interest II-40 and (y) (1) the aggregate amount of
any Relief Act Reductions and Net Prepayment Interest Shortfalls incurred for
any Distribution Date in respect of the Group II Mortgage Loans with original
terms to maturity of 30 years or less shall be allocated to REMIC A1 Regular
Interest II-30, based on, and to the extent of, one month's interest at the then
applicable respective Pass-Through Rate on the Uncertificated Balance of such
REMIC A1 Regular Interest and (2) the aggregate amount of Group II Allocated Net
Deferred Interest incurred for any Distribution Date in respect of Group II
Mortgage Loans with original terms to maturity of 30 years or less shall be
allocated to REMIC A1 Regular Interest II-30.
(v) Net Deferred Interest will be added to the Uncertificated Balance
of the REMIC A1 Regular Interests so that the Uncertificated Balance of REMIC A1
Regular Interest II-30 equals the aggregate Stated Principal Balance of the
Group II Mortgage Loans with original terms to maturity of 30 years or less and
the Uncertificated Balance of REMIC A1 Regular Interest II-40 equals the
aggregate Stated Principal Balance of the Group II Mortgage Loans with original
terms to maturity in excess of 30 years;
(vi) For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC A2 Regular Interests, (x) the aggregate amount of any
Relief Act Reductions and Net Prepayment Interest Shortfalls incurred in respect
of the Group II Mortgage Loans for any Distribution Date shall be allocated
among REMIC A2 Regular Interest II-LTAA, the Corresponding REMIC A2 Marker
Interests and REMIC A2 Regular Interest II-LTZZ, pro rata, based on, and to the
extent of, one month's interest at the then applicable respective Pass-Through
Rate on the respective Uncertificated Balance of each such REMIC A2 Regular
Interest and (y) the aggregate amount of any Group II Allocated Net Deferred
Interest for any Distribution Date shall be allocated 1.00% to the Corresponding
REMIC A2 Marker Interests and added to the Uncertificated Balance of such
Corresponding REMIC A2 Regular Interest so as to keep the Uncertificated Balance
of each Corresponding REMIC A2 Marker Interest equal to 1.00% of the Certificate
Principal Balance of the Corresponding Class of Certificates, 98.00% to REMIC A2
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Regular Interest II-LTAA and 1.00% to REMIC A2 Regular Interest II-LTZZ and
added to the Uncertificated Balance of such REMIC A2 Regular Interests.
(vii) Any amount of Net Deferred Interest in excess of Group II
Allocated Net Deferred Interest shall be added to the Uncertificated Balance of
REMIC A2 Regular Interest II-LTAA and REMIC A2 Regular Interest II-LTZZ, pro
rata, based on their respective Uncertificated Balances. Notwithstanding the
foregoing, Net Deferred Interest will be added to the Uncertificated Balance of
the REMIC A2 Regular Interests so as to keep the Uncertificated Balance of each
Corresponding REMIC A2 Marker Interest equal to 1.00% of the Certificate
Principal Balance of the Corresponding Class of Certificates, to keep the
Uncertificated Balance of REMIC A2 Regular Interest II-LTAA equal to 98.00% of
the aggregate Stated Principal Balance of the Group II Mortgage Loans, minus the
Certificate Principal Balance of the Class II-P Certificates and one-half of the
aggregate Certificate Principal Balance of the Class R and Class RX Certificates
and to keep the Uncertificated Balance of REMIC A2 Regular Interest II-LTZZ
equal to the sum of (x) 1.00% of the aggregate Stated Principal Balance of the
Group II Mortgage Loans less the Certificate Principal Balance of the Class II-P
Certificates and (y) 1.00% of the difference between the aggregate Stated
Principal Balance of the Group II Mortgage Loans less the aggregate Certificate
Principal Balance of the Class II-A, Class II-B, Class II-P Certificates plus
one-half the aggregate Certificate Principal Balance of the Class R and Class RX
Certificates.
(viii) For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC A3 Regular Interests, (x) the aggregate amount of
any Relief Act Reductions and Net Prepayment Interest Shortfalls incurred in
respect of the Group II Mortgage Loans for any Distribution Date shall be
allocated among the REMIC A3 Regular Interests in the same manner and priority
as such amounts are allocated to the Corresponding Certificates and (y) the
aggregate amount of any Group II Allocated Net Deferred Interest for any
Distribution Date shall be allocated among the REMIC A3 Regular Interests in the
same manner and priority as such amounts are allocated to the Corresponding
Certificates, such that the Uncertificated Balance or Notional Amount of each
such REMIC A3 Regular Interest equals the Certificate Principal Balance or
Notional Amount of the Corresponding Class of Certificates;
(ix) Any Group II Allocated Net Deferred Interest allocated to the
Class II-B-6 REMIC A3 Regular Interest shall be deemed allocated to the Class
II-B-6 REMIC A4 Regular Interest for the purpose of increasing the
Uncertificated Balance thereof;
(x) With respect to the REMIC I Regular Interests, all Realized Losses
on the Group I Mortgage Loans shall be deemed to be allocated on each
Distribution Date to REMIC I Regular Interest I-1-A through REMIC I Regular
Interest I-84-B, starting with the lowest numerical denomination until such
REMIC I Regular Interest has been reduced to zero, provided that, for REMIC I
Regular Interests with the same numerical denomination, such Realized Losses
shall be allocated, pro rata, between such REMIC I Regular Interests;
(xi) With respect to the REMIC II Regular Interests, all Realized
Losses on the Group I Mortgage Loans shall be deemed to be allocated on each
Distribution Date to the following REMIC II Regular Interests in the specified
percentages as follows: first, to Uncertificated Accrued Interest payable to (i)
REMIC II Regular Interest I-LTAA and REMIC II Regular Interest I-LTP and (ii)
163
REMIC II Regular Interest I-LTZZ up to an aggregate amount equal to the REMIC II
Interest Loss Allocation Amount, 98.00% and 2.00%, respectively; second, to the
Uncertificated Balances of REMIC II Regular Interest I-LTAA and REMIC II Regular
Interest I-LTZZ up to an aggregate amount equal to the REMIC II Principal Loss
Allocation Amount, 98.00% and 2.00%, respectively; third, to the Uncertificated
Balances of REMIC II Regular Interest I-LTAA, each of the Corresponding REMIC II
Marker Interests (in reverse order of payment priority) and REMIC II Regular
Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated
Balances of such REMIC II Regular Interests have been reduced to zero;
(xii) With respect to the REMIC III Regular Interests, all Realized
Losses on the Group I Mortgage Loans shall be deemed to be allocated on each
Distribution Date to the REMIC III Regular Interests such that the
Uncertificated Balance or Notional Amount of each such REMIC III Regular
Interest equals the Certificate Principal Balance or Notional Amount of the
Corresponding Class of Certificates;
(xiii) All Realized Losses allocated to Class I-B-4 REMIC III Regular
Interest shall be allocated to REMIC IV and the Class I-B-4 REMIC IV Regular
Interest. All Realized Losses allocated to Class I-C-1 REMIC III Regular
Interest shall be allocated to REMIC V and the Class I-C-1 REMIC V Regular
Interest.
(xiv) With respect to the REMIC A1 Regular Interests, (x) all Realized
Losses on each Distribution Date with respect to Group II Mortgage Loans with
original terms to maturity in excess of 30 years shall be deemed to be allocated
to REMIC A1 Regular Interest II-40 and (y) all Realized Losses on each
Distribution Date with respect to Group II Mortgage Loans with original terms to
maturity of 30 years or less shall be deemed to be allocated to REMIC A1 Regular
Interest II-30.
(xv) With respect to the REMIC A2 Regular Interests, all Realized
Losses on the Group II Mortgage Loans shall be deemed to be allocated on each
Distribution Date to the following REMIC A2 Regular Interests in the specified
percentages as follows: first, to Uncertificated Accrued Interest payable to (i)
REMIC A2 Regular Interest II-LTAA and REMIC A2 Regular Interest II-LTP and (ii)
REMIC A2 Regular Interest II-LTZZ up to an aggregate amount equal to the REMIC
A2 Interest Loss Allocation Amount, 98.00% and 2.00%, respectively; second, to
the Uncertificated Balances of REMIC A2 Regular Interest II-LTAA and REMIC A2
Regular Interest II-LTZZ up to an aggregate amount equal to the REMIC A2
Principal Loss Allocation Amount, 98.00% and 2.00%, respectively; third, to the
Uncertificated Balances of REMIC A2 Regular Interest II-LTAA, each of the
Corresponding REMIC II Marker Interests (in reverse order of payment priority)
and REMIC A2 Regular Interest II-LTZZ, 98.00%, 1.00% and 1.00%, respectively,
until the Uncertificated Balances of such REMIC A2 Regular Interests have been
reduced to zero.
(xvi) With respect to the REMIC A3 Regular Interests, all Realized
Losses on the Group II Mortgage Loans shall be deemed to be allocated on each
Distribution Date such that the Uncertificated Balance or Notional Amount of
each such REMIC A3 Regular Interest equals the Certificate Principal Balance or
Notional Amount of the Corresponding Class of Certificates.
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(xvii) All Realized Losses allocated to the Class II-B-6 REMIC A3
Regular Interest shall be allocated to REMIC A4 and the Class II-B-6 REMIC A4
Regular Interest. All Realized Losses allocated to the Class II-C REMIC A3
Regular Interest shall be allocated to REMIC A5 and the Class II-C REMIC A5
Regular Interest.
(o) Notwithstanding anything to the contrary contained herein, the above
distributions in this Section 8.07 (other than with respect to the Certificates)
are deemed distributions, and distributions of funds to the Certificates shall
be made only in accordance with Sections 8.05 and 8.06 hereof.
(p) It is the intention of all of the parties hereto that the Class 1-C-1
Certificates receive all principal and interest received by the Trust on the
Group I Mortgage Loans that is not otherwise distributable to any other Class of
Class I Certificates or Group I Regular Interests other than as provided for in
Section 8.05(c). It is the intention of all of the parties hereto that the Class
II-C Certificates receive all principal and interest received by the Trust on
the Group II Mortgage Loans that is not otherwise distributable to any other
Class of Class II Certificates or Group II Regular Interests other than as
provided for in Section 8.05(g). If the Securities Administrator determines that
the Residual Certificates are entitled to any distributions, the Securities
Administrator, prior to any such distribution to any Residual Certificate, shall
notify the Depositor of such impending distribution. Upon such notification, the
Depositor will request an amendment to the Agreement to revise such mistake in
the distribution provisions. The Residual Certificate Holders, by their
acceptance of their Certificates, and the Master Servicer hereby agree and no
further consent shall be necessary, notwithstanding anything to the contrary in
this Agreement.
SECTION 8.08 Indemnification.
----------------
(a) The Depositor, the Master Servicer, the Securities Administrator
(including in its capacity as Supplemental Interest Trust Trustee), the
Custodian and the Trustee, and any director, officer, employee or agent of the
Depositor, the Master Servicer, the Securities Administrator or the Trustee,
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement, the Cap Agreement and Swap Agreement and any
related credit support annex (if applicable), Custodial Agreement, any Servicing
Agreement or the Certificates or any other unanticipated or extraordinary
expense, other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence (or gross negligence in the case of the
Master Servicer, Securities Administrator, Custodian and Depositor) in the
performance of such Person's duties hereunder or by reason of reckless disregard
of such Person's obligations and duties hereunder. None of the Depositor, the
Master Servicer, the Custodian or the Securities Administrator shall be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that each of the
Depositor, the Master Servicer, the Custodian and the Securities Administrator
may in its respective sole discretion undertake any such claim that it may deem
necessary or desirable in respect of this Agreement (or Custodial Agreement) and
the rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
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such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer, the
Custodian and the Securities Administrator shall be entitled to be reimbursed
therefor out of the Distribution Account.
(b) The Securities Administrator and its officers, directors, employees and
agents will be entitled to recover from the Trust Fund from amounts held in the
Distribution Account, and shall be indemnified from the Trust Fund for, all
reasonable out-of-pocket expenses, disbursements, and advances, including costs
of collection, upon any breach of this Agreement or any Event of Default or
Termination Event under the Cap Agreement, or any loss, liability, expense,
claim or legal action (including any pending or threatened claim or legal
action) incurred or made by any of them in the performance of their duties under
this Agreement (including the reasonable compensation, expenses and
disbursements of its counsel), except any such expense, loss, liability,
disbursement or advance as may arise from its gross negligence or intentional
misconduct. If funds in the Distribution Account are insufficient therefor, the
Securities Administrator shall recover such expenses from future funds deposited
in the Distribution Account. Such compensation and reimbursement obligation
shall not be limited by any provision of law in regard to the compensation of a
Securities Administrator of an express trust. Such obligations shall survive the
termination of this Agreement and the removal or resignation of the Securities
Administrator.
SECTION 8.09 Final Maturity Reserve Trust
----------------------------
(a) A separate trust is hereby established (the "Final Maturity Reserve
Trust" for the benefit of the Class II Certificates. The Final Maturity Reserve
Trust shall be maintained by the Securities Administrator, which is hereby
appointed Final Maturity Reserve Trustee and hereby accepts such appointment. On
or before the Distribution Date in January 2017, the Final Maturity Reserve
Trust shall establish and maintain a time, demand or deposit account ("Final
Maturity Reserve Account") to be held in the Final Maturity Reserve Trust and
which shall be designated "Xxxxx Fargo Bank, N.A., as Final Maturity Reserve
Trustee, in Trust for Luminent Mortgage Trust 2007-1 Final Maturity Reserve
Account." The Final Maturity Reserve Account shall be established as an Eligible
Account and funds on deposit therein shall be maintained separate and apart from
any of the Final Maturity Reserve Trustee's own fund and general assets. All
funds required to be deposited in the Final Maturity Reserve Account shall be
held for the benefit of the Class II Certificateholders until withdrawn in
accordance with Section 8.09. Commencing with the Distribution Date in January
2017 and on each Distribution Date thereafter, if the aggregate Stated Principal
Balance of the Group II Mortgage Loans with original terms to maturity of more
than 30 years is greater than the amount shown for such Distribution Date on the
Final Maturity Reserve Schedule, the Final Maturity Reserve Trustee shall
deposit in the Final Maturity Reserve Account the Final Maturity Reserve Amount
with respect to such Distribution Date.
(b) Funds on deposit in the Final Maturity Reserve Account will be invested
at the direction of the Class II-C Certificateholders and shall mature not later
than the Distribution Date next following the date of such investment. Unless
otherwise directed in writing by the Class II-C Certificateholders, such amounts
will be invested in the Xxxxx Fargo Advantage Prime Investment Money Market
Fund; provided however, that (i) the dividends on such fund are expected to be
substantially comprised all of "interest-related dividends" and/or "short-term
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capital gains dividends" within the meaning of the Code and (ii) no income to be
received from such fund is or will be subject to deduction or withholding for or
on account of any withholding or similar tax. All income and gain realized from
any such investment shall be for the benefit of such Account. The Class II-C
Certificateholders shall be liable for any losses incurred on such investments.
(c) On each Distribution Date, any amount on deposit in the Final Maturity
Reserve Account in excess of the lesser of (i) the Certificate Principal Balance
of the Class II Certificates and (ii) the aggregate Stated Principal Balance of
the Group II Mortgage Loans with original terms to maturity in excess of 30
years, will be distributed in the following order of priority:
(i) to the Classes of Class II certificates then entitled to receive
distributions in respect of principal in the priority described above under
Section 8.05(f), any remaining Group II Overcollateralization Deficiency;
(ii) to each Class of Class II-A certificates, pro rata, based upon
the entitlement of each class to pay any unpaid Interest Distribution Amounts
and any Interest Carry Forward Amount;
(iii) to each Class of Class II-A certificates, pro rata, to pay any
realized losses on the Group II Mortgage Loans applied to reduce the certificate
principal balances for such Distribution Date and prior distribution dates for
such class of Class II-A certificates;
(iv) to each Class of Class II-B Certificates sequentially in
numerical order, to pay any unpaid Interest Distribution Amounts and any
Interest Carry Forward Amounts;
(v) to each Class of Class II-B Certificates sequentially in numerical
order, to pay any realized losses on the group II mortgage loans applied to
reduce the Certificate Principal Balances for such Distribution Date and prior
distribution dates for such class of Class II-B Certificates;
(vi) to each Class of Class II-A certificates, pro rata, based upon
the entitlement of each Class and then sequentially in numerical order to each
Class of Class II-B Certificates, any unpaid Basis Risk Shortfall Carryover
Amounts with respect to the Class II Certificates; and
(vii) to the Class II-C certificates, any remaining amounts.
Amounts distributed in respect of clauses (i), (iii) and (v) together with
amounts distributed in respect of clauses (i), (iii) and (v) from prior
distribution dates shall not exceed the aggregate of current or prior Realized
Losses on the Group II Mortgage Loans not previously reimbursed by Subsequent
Recoveries.
(d) On the earlier of the Distribution Date occurring in January 2037 and
the Distribution Date on which the final distribution of payments from the Group
II Mortgage Loans and the other assets in the trust is expected to be made, any
remaining amounts on deposit in the Final Maturity Reserve Account will be
distributed to the Class II Certificates in the following order of priority:
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(i) to the Class II-A Certificates, pro rata, in accordance with their
respective outstanding Certificate Principal Balances until the Certificate
Principal Balances thereof have been reduced to zero;
(ii) sequentially, to the Class II-B-1, Class II-B-2, Class II-B-3,
Class II-B-4, Class II-B-5 and Class II-B-6 Certificates, in that order, after
giving effect to principal distributions on such Distribution Date, until the
Certificate Principal Balances thereof have been reduced to zero;
(iii) to each class of Class II Certificates, any Current Interest and
Interest Carry Forward Amount for each such Class remaining unpaid after giving
effect to interest distributions on such Distribution Date in accordance with
payment priorities set forth in Section 8.05(e).
(iv) to each Class of Class II Certificates, any Basis Risk Shortfall
Carry-forward Amount for each such class remaining unpaid after giving effect to
the distributions on such Distribution Date in accordance with payment
priorities set forth in Section 8.05(g)(iv); and
(v) to the Class II-C Certificates, any remaining amount.
(e) If the mortgage loans are purchased in connection with an optional
termination of the Class II Certificates, the funds on deposit in the Final
Maturity Reserve Account will be used to make payments in accordance with
priorities (iv) and (v) above after application of the purchase price pursuant
to the exercise of the optional termination.
(f) The Final Maturity Reserve Account shall not be an asset of any REMIC
created pursuant to this Agreement. The Final Maturity Reserve Account will
constitute an "outside reserve fund" for purposes of the REMIC Provisions. It is
the intention of the parties hereto that, for federal and state income and
franchise tax purposes, the Final Maturity Reserve Trust be disregarded as an
entity separate from the holder of the Class II-C Certificates unless and until
the date when either (a) there is more than one Class II-C Certificateholder or
(b) any Class of Certificates in addition to the Class II-C Certificates is
recharacterized as an equity interest in the Final Maturity Reserve Trust for
federal income tax purposes. Neither the Securities Administrator nor the
Trustee shall be responsible for any entity level tax reporting for the Final
Maturity Reserve Trust.
(g) For federal income tax purposes, any Class II Certificateholder that
receives a principal payment from the Final Maturity Reserve Trust shall be
treated as selling a portion of its Certificate to the Class II-C
Certificateholder and as having received the amount of the principal payment
from the Class II-C Certificateholder as the proceeds of the sale. The portion
of the Certificate that is treated as having been sold shall equal the amount of
the corresponding reduction in the Certificate Principal Balance of such
Certificate. Principal payments received from the Final Maturity Reserve Trust
shall not be treated as distributions from any REMIC created hereby. All
principal distributions from the Final Maturity Reserve Trust shall be accounted
for hereunder in accordance with this Section 8.09(g).
(h) For federal income tax purposes the Final Maturity Reserve Trust shall
be owned by the holder of the Class II-C Certificates.
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(i) Any Basis Risk Shortfall Carryforward Amounts distributed pursuant to
clause (d)(iv) above shall be treated for federal income tax purposes not as
amounts received in respect of the REMIC Regular Interest but rather as amounts
having been distributed from REMIC A5 in respect of the Class II-F REMIC A5
Regular Interest to the Class II-C Certificates and then from the holders of the
Class II-C Certificates to the holders of the Class II Certificates. The Final
Maturity Reserve Trustee shall account for the rights of the Class II
Certificates to receive payments of any Basis Risk Shortfall Carryforward Amount
as rights in limited recourse notional principal contracts written by the Class
II-C Certificates in favor of the Class II Certificates. For federal income tax
return and information reporting purposes, the right of the Class II
Certificates to receive payments in respect of Basis Risk Shortfall Carryforward
Amounts pursuant to this section shall be assumed to have a value of zero unless
and until required otherwise by the applicable taxing authority. Any payments to
the Certificates from amounts deemed received in respect of this notional
principal contract shall not be payments with respect to a Regular Interest in a
REMIC within the meaning of Code Section 860G(a)(1).
SECTION 8.10 Grantor Trust Administration
----------------------------
(a) The Trustee and the Securities Administrator shall treat the portions
of the Trust consisting of the Class I Reserve Account and the Supplemental
Interest Trust and rights and obligations with respect thereto as the Class
I-C-2 Grantor Trust and provisions of this Agreement shall be interpreted
consistently with this treatment. In addition, the Depositor shall deposit $100
into the Class I-C-2 Grantor Trust.
(b) On each Distribution Date, the Securities Administrator shall be deemed
to deposit all distributions in respect of the Class I Reserve Account and the
Supplemental Interest Trust in the Class I-C-2 Grantor Trust, and shall
immediately distribute such amounts as provided in Section 8.02 and Section
8.04, respectively. On the first Distribution Date, the Securities Administrator
will distribute from amounts on deposit in the Class I-C-2 Grantor Trust, $100
in reduction of the Certificate Principal Balance of the Class I-C-2
Certificates.
(c) The Trustee and the Securities Administrator shall treat the portions
of the Trust consisting of the Class II Reserve Account and rights and
obligations with respect thereto as the Class II-C Grantor Trust and provisions
of this Agreement shall be interpreted consistently with this treatment. On each
Distribution Date, the Securities Administrator shall be deemed to deposit all
distributions in respect of the Class II Reserve Account in the Class II-C
Grantor Trust, and shall immediately distribute such amounts as provided in
Section 8.02.
(d) The Securities Administrator and the Trustee shall account for the
Class I-C-2 Grantor Trust and the assets and rights and obligations with respect
thereto as, for federal income tax purposes, a grantor trust as described in
Subpart E of Part I of Subchapter J of the Code and Treasury Regulation
ss.301.7701-4(c)(2) and not as assets of any REMIC created pursuant to this
Agreement. The Securities Administrator and the Trustee shall account for the
Class II-C Grantor Trust and the assets and rights and obligations with respect
thereto as, for federal income tax purposes, a grantor trust as described in
Subpart E of Part I of Subchapter J of the Code and Treasury Regulation ss.
301.7701-4(c)(2) and not as assets of any REMIC created pursuant to this
Agreement. The Securities Administrator shall apply for a taxpayer
identification number for each grantor trust on IRS Form SS-4 and any similarly
required state or local forms. The Securities Administrator shall furnish or
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caused to be furnished to the Holders of the Class I-C-2 Certificates or Class
II-C Certificates, respectively, and shall file or cause to be filed IRS Form
1041 and such other forms as may be required by the Code and regulations
promulgated thereunder and any similar state or local laws with respect to the
allocable shares of income and expenses with respect to the assets of each
grantor trust at the time and in the manner required by the Code and regulations
promulgated thereunder and any similar state or local laws. The Securities
Administrator shall sign any forms required above where permitted to do so by
applicable law; the Trustee shall sign any such forms to the extent the
Securities Administrator is not permitted to do so.
SECTION 8.11 Allocation of Group II Net Deferred Interest
--------------------------------------------
For any Distribution Date, the Group II Net Deferred Interest on the Group
II Mortgage Loans will be allocated to each Class II Certificates in an amount
equal to the excess, if any, for each such Class of the interest accrued on such
Class for the related Accrual Period at the related Pass-Through Rate over the
interest accrued for such Accrual Period calculated based on the Group II
Adjusted Rate Cap (such excess, "Group II Allocated Net Deferred Interest"). On
each Distribution Date, any amount of Group II Net Deferred Interest allocated
to a Class II Certificate on such Distribution Date will be added to the
Certificate Principal Balance for such Class.
ARTICLE IX
THE CERTIFICATES
SECTION 9.01 The Certificates.
-----------------
(a) The Certificates shall be substantially in the forms attached hereto as
Exhibit X-0, Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Exhibit A-5 and Exhibit A-6.
The Certificates shall be issuable in registered form, in the initial
Certificate Principal Balances or Notional Amounts, as applicable, minimum
denominations and aggregate denominations per Class and with the Pass-Through
Rates set forth in the Preliminary Statement.
(b) Subject to Section 11.02, on each Distribution Date the Securities
Administrator shall make distributions to each Certificateholder of record on
the preceding Record Date either (i) by wire transfer in immediately available
funds to the account of such holder at a bank or other entity having appropriate
facilities therefor, if such Holder has so notified the Securities Administrator
at least five Business Days prior to the related Record Date or (ii) by check
mailed by first class mail to such Certificateholder at the address of such
Holder appearing in the Certificate Register.
(c) The Certificates shall be executed by manual or facsimile signature on
behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the
Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the countersignature and delivery of such Certificates or
did not hold such offices at the date of such Certificate. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
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unless countersigned by the Securities Administrator by manual signature, and
such countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Securities Administrator shall authenticate the
Certificates to be issued at the written direction of the Depositor or any
Affiliate thereof.
SECTION 9.02 Certificate Register; Registration of Transfer and Exchange
-----------------------------------------------------------
of Certificates.
----------------
(a) The Securities Administrator, as Certificate Registrar, shall maintain,
or cause to be maintained in accordance with the provisions of Section 9.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator shall
execute, authenticate, and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange shall
be canceled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator's customary procedures.
(b) No transfer of a Certificate other than an Offered Certificate shall be
made unless such transfer is (a) made between affiliates of the Depositor
(inclusive of the Depositor), (b) by the Depositor to a trust for which it is
the sponsor or (c) made pursuant to an effective registration statement under
the Securities Act and any applicable state securities laws or is exempt from
the registration requirements under such Act and such state securities laws. In
the event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect the transfer of a
Private Certificate shall (i) certify to the Securities Administrator in writing
the facts surrounding the transfer in substantially the forms set forth in
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Exhibit E (the "Transferor Certificate") and (ii) deliver to the Securities
Administrator at the expense of the transferor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act. Such
Certificateholder's prospective transferee shall execute and deliver to the
Securities Administrator a letter substantially in the form of either Exhibit
F-1 (the "Investment Letter") or Exhibit F-2 (the "Rule 144A Letter"). The
Depositor shall provide to any Holder of a Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. The
Securities Administrator shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including providing
to the Depositor such information regarding the Certificates, the Mortgage Loans
and other matters regarding the Trust Fund as the Depositor shall reasonably
request in the Securities Administrator's possession to meet its obligation
under the preceding sentence. Each Holder of a Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor and the Securities Administrator against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
(c) (i) No transfer of an ERISA Restricted Certificate shall be made unless
the Securities Administrator shall have received a Benefit Plan Affidavit
substantially in the form of Exhibit G including (A) a representation from the
transferee of such Certificate to the effect that such transferee is not an
employee benefit plan as defined in Section 3(3) of ERISA that is subject to
Title I of ERISA or a plan as defined in Section 4975(e)(1) of the Code that is
subject to Section 4975 of the Code or an entity that holds assets of such an
employee benefit plan or plan (or is deemed to hold the assets of such an
employee benefit plan or plan pursuant to 29 CFR section 2510.3-101 as modified
by section 3(42) of ERISA) by reason of such employee benefit plan's or plan's
investment in the entity (collectively, a "Benefit Plan") or a governmental plan
(as defined in section 3(32) of ERISA) or church plan (as defined in section
3(33) of ERISA) that is subject to any federal, state or local law that is
substantially similar to prohibited transaction provisions of ERISA or the Code
or the fiduciary provisions of ERISA ("Similar Law") (such a plan, together with
a Benefit Plan (a "Plan")) nor any person acting on behalf of a Plan or using
the assets of a Plan, (B) in the case of an ERISA Restricted Certificate (other
than a Residual Certificate, a Class C Certificate or a Class P Certificate), a
representation that (A) in the case of a Benefit Plan, the purchaser or
transferee is an accredited investor within the meaning of the Underwriter's
Exemption and (B) (I) in the case of a Benefit Plan, the purchaser or transferee
is an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925
(July 12, 1995) ("PTCE 95-60")) and there is no Plan subject to ERISA or the
Code with respect to which the amount of such general account's reserves and
liabilities for the contract(s) held by or on behalf of such Plan and all other
such Plans maintained by the same employer (or affiliate thereof as defined in
section V(a)(1) of PTCE 95-60) or by the same employee organization exceeds 10%
of the total of all reserves and liabilities of such general account (as such
amounts are determined under section I(a) of PTCE 95-60) at the date of
acquisition and all Plans that have an interest in such general account are
Plans to which PTCE 95-60 applies and (II) the acquisition and holding of such
Certificate or interest therein will not result in an non-exempt prohibited
transaction within the meaning of section 406 of ERISA or section 4975 of the
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Code or a violation of Similar Law, or (C) in the case of an ERISA Restricted
Certificate (other than a Residual Certificate) presented for registration in
the name of a Plan or any other person acting for or on behalf of any such Plan,
or using assets of a Plan, an Opinion of Counsel satisfactory to the Securities
Administrator, which Opinion of Counsel shall not be an expense of the
Securities Administrator, the Depositor, the Master Servicer, a Servicer, the
Trustee, an Underwriter or the Trust Fund, addressed to the Securities
Administrator to the effect that the acquisition and holding of such ERISA
Restricted Certificate will not result in any non-exempt prohibited transaction
under Title I of ERISA or Section 4975 of the Code or a violation of any Similar
Law and will not subject the Depositor, the Trustee, the Securities
Administrator, an Underwriter, the Master Servicer or any Servicer to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in this Agreement. For
purposes of clauses (A) and (B) of this Section 9.02(c)(i), with respect to an
ERISA Restricted Certificate that is a Book-Entry Certificate, in the event the
Benefit Plan Affidavit is not so furnished, the representations referred to in
such clauses (A) and (B) shall be deemed to have been made to the Securities
Administrator by the transferee's (including an initial acquirer's) acceptance
of the ERISA Restricted Certificates. Neither a Benefit Plan Affidavit nor an
Opinion of Counsel shall be required in connection with the initial transfer of
any Certificate by the Depositor to an affiliate of the Depositor, and the
Securities Administrator shall be entitled to conclusively rely upon a
representation (which, upon the request of the Securities Administrator, shall
be a written representation) from the Depositor of the status of such transferee
as an affiliate of the Depositor. Notwithstanding anything else to the contrary
herein, any purported transfer of an ERISA Restricted Certificate to or on
behalf of a Plan or any Person acting on behalf of such Plan or using assets of
such Plan without compliance with the conditions described above shall be void
and of no effect.
(ii) For so long as the Supplemental Interest Trust is in existence,
each purchaser or transferee of a Class I Certificate or any interest therein
shall deliver to the Securities Administrator (A) a representation letter, in
form and substance satisfactory to the Securities Administrator, stating that
either (I) the purchaser or transferee is not a Plan or person acting on behalf
of a Plan or using assets of a Plan or (II), in the case of a Class I
Certificate, (a) in the case of a Benefit Plan, the purchaser or transferee is
an accredited investor within the meaning of the Underwriter's Exemption and (b)
the acquisition and holding of the Certificate or interest therein and the
separate right to receive payments from the Supplemental Interest Trust meets
all the conditions for exemptive relief (in the case of a Benefit Plan) under
one of the Investor-Based Class Exemptions and will not result in an non-exempt
prohibited transaction within the meaning of section 406 of ERISA or section
4975 of the Code or a violation of Similar Law or (B) an Opinion of Counsel, in
form and substance satisfactory to the Securities Administrator, to the effect
that the purchase or holding of this Certificate by or on behalf of such Plan
will not constitute or result in a non-exempt prohibited transaction under
section 406 of ERISA or section 4975 of the Code or a violation of Similar Law
and will not subject the Depositor, the Master Servicer, the Servicers, an
Underwriter, the Securities Administrator or the Trustee to any obligation or
liability (including obligations or liabilities under ERISA or section 4975 of
the Code) in addition to those undertaken in this Agreement, which Opinion of
Counsel shall not be an expense of the Securities Administrator, the Depositor,
the Trustee, the Master Servicer, a Servicer or an Underwriter. For purposes of
clause (A) of this paragraph (ii) of Section 9.02(c), with respect to such a
Class I Certificate described herein that is a Book-Entry Certificate, in the
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event the representation letter is not so furnished, the representations
referred to in such clause (A) shall be deemed to have been made to the
Securities Administrator by the transferee's (including an initial acquirer's)
acceptance of such Class I Certificate or any interest therein. Neither a
representation letter nor an Opinion of Counsel shall be required in connection
with the initial transfer of any such Class I Certificate by the Depositor to an
affiliate of the Depositor, and the Securities Administrator shall be entitled
to conclusively rely upon a representation (which, upon the request of the
Securities Administrator, shall be a written representation) from the Depositor
of the status of such transferee as an affiliate of the Depositor.
Notwithstanding anything else to the contrary herein, any purported transfer of
such a Class I Certificate to or on behalf of a Plan or any Person acting on
behalf of such plan or using assets of such Plan without compliance with the
conditions described above shall be void and of no effect.
(iii) For so long as the Final Maturity Reserve Trust is in existence,
each purchaser or transferee of a Class II-A-1 Certificate or any interest
therein shall deliver to the Securities Administrator (A) a representation
letter, in form and substance satisfactory to the Securities Administrator,
stating that either (I) the purchaser or transferee is not a Plan or person
acting on behalf of a Plan or using assets of a Plan or (II) in the case of such
a Class II-A-1 Certificate, (a) in the case of a Benefit Plan, the purchaser or
transferee is an accredited investor within the meaning of the Underwriter's
Exemption and (b) the acquisition and holding of the Certificate or interest
therein and the separate right to receive payments from the Final Maturity
Reserve Trust meets all the conditions for exemptive relief (in the case of a
Benefit Plan) under one of the Investor-Based Class Exemptions and will not
result in an non-exempt prohibited transaction within the meaning of section 406
of ERISA or section 4975 of the Code or a violation of Similar Law or (B) an
Opinion of Counsel, in form and substance satisfactory to the Securities
Administrator, described in clause (B) of paragraph (ii) above. For purposes of
clause (A) of this paragraph (iii) of Section 9.02(c), with respect to such a
Class II-A-1 Certificate described herein that is a Book-Entry Certificate, in
the event the representation letter is not so furnished, the representations
referred to in such clause (A) shall be deemed to have been made to the
Securities Administrator by the transferee's (including an initial acquirer's)
acceptance of such Class II-A-1 Certificate or any interest therein. Neither a
representation letter nor an Opinion of Counsel shall be required in connection
with the initial transfer of any such Class II-A-1 Certificate by the Depositor
to an affiliate of the Depositor, and the Securities Administrator shall be
entitled to conclusively rely upon a representation (which, upon the request of
the Securities Administrator, shall be a written representation) from the
Depositor of the status of such transferee as an affiliate of the Depositor.
Notwithstanding anything else to the contrary herein, any purported transfer of
such a Class II-A-1 Certificate to or on behalf of a Plan or any Person acting
on behalf of a Plan or using assets of a Plan without compliance with the
conditions described above shall be void and of no effect.
(iv) To the extent permitted under applicable law (including ERISA),
the Securities Administrator shall be under no liability to any Person for any
registration of transfer of any ERISA Restricted Certificate that is in fact not
permitted by this Section 9.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Securities Administrator in accordance with the foregoing
requirements.
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(d) The preparation and delivery of all Certificates and opinions referred
to in this Section 9.02 in connection with transfer shall be at the expense of
the parties to such transfers, and not an expense of the Securities
Administrator or the Trust Fund.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times:
(i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository;
(ii) the Depository shall maintain book-entry records with respect to
the Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates;
(iii) ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(v) the Securities Administrator shall deal with the Depository,
Depository Participants and indirect participating firms as representatives of
the Certificate Owners of the Book-Entry Certificates for purposes of exercising
the rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they are
made with respect to different Certificate Owners; and
(vi) the Securities Administrator may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures. Neither the Trustee, the Securities
Administrator nor the Master Servicer shall be required to monitor, determine or
inquire as to compliance with the transfer restrictions with respect to any
Book-Entry Certificates. Neither the Trustee, the Master Servicer nor the
Securities Administrator shall have any liability for transfer of any such
Book-Entry Certificates in or through book-entry facilities of any Depository or
between or among Depository Participants or Certificate Owners made in violation
of the transfer restrictions set forth herein.
If (i) (A) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (B) the Securities
Administrator or the Depositor is unable to locate a qualified successor or (ii)
the Depositor at its option advises the Securities Administrator in writing that
it elects to terminate the book-entry system, or at the direction of Certificate
Owners representing at least 51% of the Certificate Principal Balance advises
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the Securities Administrator and the Depository through the Depository
Participants in writing that the continuation of a book-entry system through the
Depository is no longer in the best interests of the Certificate Owners, the
Securities Administrator shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Securities Administrator of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Securities Administrator shall issue
the Definitive Certificates. Neither the Depositor nor the Securities
Administrator shall be liable for any delay in delivery of such instruction and
each may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Securities Administrator with an
adequate inventory of Certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Securities
Administrator, to the extent applicable with respect to such Definitive
Certificates and the Securities Administrator shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided that the
Securities Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to this Section 9.02(f). Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Securities Administrator with an effective Internal Revenue Service Form W-8ECI
or successor form at the time and in the manner required by the Code (any such
person who is not covered by clause (A) or (B) above is referred to herein as a
"Non-permitted Foreign Holder").
No Person shall acquire an Ownership Interest in a Residual Certificate
unless such Ownership Interest is a pro rata undivided interest. Prior to and as
a condition of the registration of any transfer, sale or other disposition of a
Residual Certificate, the proposed transferee shall deliver to the Securities
Administrator an affidavit in substantially the form attached hereto as Exhibit
H and the proposed transferor shall deliver to the Securities Administrator a
certificate substantially in the form attached hereto as Exhibit E.
Notwithstanding the delivery of an affidavit substantially in the form of
Exhibit H by a proposed transferee, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in a Residual
Certificate to such proposed transferee shall be effected. In addition, the
Securities Administrator may (but shall have no obligation to) require, prior to
and as a condition of any such transfer, the delivery by the proposed transferee
of an Opinion of Counsel, addressed to the Securities Administrator, that such
proposed transferee or, if the proposed transferee is an agent or nominee, the
proposed beneficial owner, is a Permitted Transferee. Notwithstanding the
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registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-permitted Foreign Holder, such registration shall be
deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
Neither the Depositor nor the Securities Administrator shall be under any
liability to any Person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof or
Non-permitted Foreign Holder or for the Securities Administrator making any
payments due on such Residual Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the provisions of the
Agreement, so long as the transfer was effected in accordance with this Section
9.02(f), unless the Securities Administrator shall have actual knowledge at the
time of such transfer or the time of such payment or other action that the
transferee is a Disqualified Organization, or an agent or nominee thereof, or
Non-permitted Foreign Holder. The Securities Administrator shall be entitled to
recover from any Holder of a Residual Certificate that was a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder at the
time it became a Holder or any subsequent time it became a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder, all
payments made on such Residual Certificate at and after either such times and
all costs and expenses, including but not limited to attorneys' fees, incurred
in connection therewith. Any payment (not including any such costs and expenses)
so recovered by the Securities Administrator shall be paid and delivered to the
last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a Residual
Certificate in violation of the provisions of this Section 9.02(f), then upon
receipt of written notice to the Securities Administrator that the registration
of transfer of such Residual Certificate was not in fact permitted by this
Section 9.02(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Depositor and the Securities
Administrator shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this Section
9.02(f), or for the Securities Administrator making any payment due on such
Certificate to the registered Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered upon receipt of the affidavit described in the preceding
paragraph of this Section 9.02(f).
(g) Each Holder of an ERISA Restricted Certificate or Residual Certificate,
or an interest therein, by such Holder's acceptance thereof, shall be deemed for
all purposes to have consented to the provisions of this section.
SECTION 9.03 Mutilated, Destroyed, Lost or Stolen Certificates.
--------------------------------------------------
If (a) any mutilated Certificate is surrendered to the Securities
Administrator, or the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b) there
is delivered to the Depositor and the Securities Administrator such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
countersign and deliver, in exchange for or in lieu of any such mutilated,
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destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 9.03, the Securities Administrator may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 9.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 9.04 Persons Deemed Owners.
----------------------
The Securities Administrator and the Trustee and any agent of the
Securities Administrator and any agent of the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Securities Administrator nor any
agent of the Securities Administrator shall be affected by any notice to the
contrary.
SECTION 9.05 Access to List of Certificateholders' Names and Addresses.
----------------------------------------------------------
If three or more Certificateholders (a) request such information in writing
from the Securities Administrator, (b) state that such Certificateholders desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor shall request such information in writing from the Securities
Administrator, then the Securities Administrator shall, within ten Business Days
after the receipt of such request, provide the Depositor or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Securities Administrator, if
any. The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Securities Administrator shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 9.06 Maintenance of Office or Agency.
--------------------------------
The Securities Administrator shall maintain or cause to be maintained at
its expense an office or offices or agency or agencies where Certificates may be
surrendered for registration of transfer or exchange. The Securities
Administrator initially designates its office at Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 for such purposes. The Securities
Administrator shall give prompt written notice to the Certificateholders of any
change in such location of any such office or agency.
SECTION 9.07 Limitation on Rights of Holders.
--------------------------------
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
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have any right to vote or in any manner otherwise control the Securities
Administrator, the Master Servicer or any Servicer or the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of a Servicer
Event of Default or a Master Servicer Event of Default and of the continuance
thereof, and unless also the Holders of Certificates evidencing not less than
51% of the Voting Interests of Certificates of each Class affected thereby shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee indemnity reasonably satisfactory to it as it may require against the
cost, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request has been
given such Trustee during such 60-day period by such Certificateholders; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder, and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 9.07, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 9.08 Acts of Holders of Certificates.
--------------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders or
Certificate Owners, if the Holder is a Depository, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where expressly
required herein, to the Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agents shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee, if made in the manner provided in this Section 9.08. The Trustee shall
promptly notify the others of receipt of any such instrument by it, and shall
promptly forward a copy of such instrument to the others.
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(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments or deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Whenever such execution is
by an officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Securities Administrator) shall be proved
by the Certificate Register, and neither the Trustee nor the Depositor shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
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ARTICLE X
THE DEPOSITOR
SECTION 10.01 Liabilities of the Depositor.
-----------------------------
The Depositor shall be liable in accordance herewith only to the extent of
the obligations specifically imposed upon and undertaken by the Depositor
herein.
SECTION 10.02 Merger or Consolidation of the Depositor.
-----------------------------------------
(a) The Depositor shall keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof and shall obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
(b) Any Person into which the Depositor may be merged or consolidated, or
any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any person succeeding to the business of the Depositor,
shall be the successor of the Depositor hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 10.03 Limitation on Liability of the Depositor and Others.
----------------------------------------------------
None of the Depositor or any of the directors, officers, employees or
agents of the Depositor shall be under any liability to the Certificateholders
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor or any such Person against
any breach of representations or warranties made by it herein or protect the
Depositor or any such Person from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of its obligations and duties
hereunder. The Depositor and any director, officer, employee or agent of the
Depositor may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor and any director, officer, employee or agent of the
Depositor shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties
hereunder and which in its opinion may involve it in any expense or liability;
provided, however, that the Depositor may in its discretion undertake any such
action that it may deem necessary or desirable in respect of this Agreement and
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the rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund and the Depositor shall be entitled to be
reimbursed therefor out of the Distribution Account on any Distribution Date.
ARTICLE XI
TERMINATION
SECTION 11.01 Termination upon Liquidation or Purchase of all Mortgage
--------------------------------------------------------
Loans.
------
Subject to the provisions of Section 11.03, the obligations and
responsibilities of the Depositor, the Seller, the Servicers, the Master
Servicer, the Securities Administrator and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of:
(a) on any Distribution Date on which the sum of the aggregate Stated
Principal Balance (i) of the Group I Mortgage Loans is 10% or less than their
Cut-off Date Balance, the purchase by a Majority In Interest of the Class I-C-1
Certificates of all the Group I Mortgage Loans and related REO Properties and
(ii) of the Group II Mortgage Loans is 10% or less than their Cut-off Date
Balance, the purchase by a Majority Interest of the Class II-C Certificates of
all the Group II Mortgage Loans and related REO Properties (any such event, a
"Clean-up Call") at a price (the "Termination Price") equal to the sum of (i)
100% of the Stated Principal Balance of the related Mortgage Loans as of the
date of the purchase thereof by such Majority In Interest, (ii) with respect to
each related REO Property, the lesser of (x) the fair market value of such REO
Property as determined in good faith by the Servicer of such REO Property and
(y) the Stated Principal Balance of the related Mortgage Loans, (iii) one
month's accrued interest on the sum of (i) and (ii), at the Group I or Group II
Net Mortgage Rate, as applicable, (iv) without duplication, the amount of all
unreimbursed Advances and any unpaid Servicing Fees and Master Servicing Fees
allocable to the related Mortgage Loans and related REO Properties, (v) with
respect to the Group I Mortgage Loans, any Swap Termination Payments owed by the
Supplemental Interest Trust to any swap provider (including a Swap Termination
Payment owed in connection with such Optional Termination), and (vii) all
amounts, if any, then due and owing to the Master Servicer, each Servicer, the
Trustee, the Securities Administrator and the Custodian under this Agreement or
in respect of the related Mortgage Loans, and
(b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement.
In no event shall the trusts created hereby continue beyond the earlier of
(i) the expiration of 21 years from the death of the survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St. James's, living on the date hereof and (ii) the Final Scheduled Distribution
Date.
SECTION 11.02 Final Distribution on the Certificates.
---------------------------------------
If on any Determination Date, the Master Servicer determines that there are
no outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Distribution Account, the Master Servicer shall
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notify the Securities Administrator, which shall promptly send a final
distribution notice to each Certificateholder.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the
Securities Administrator by letter to Certificateholders mailed not earlier than
the 15th day of the month immediately preceding the month of such final
distribution and no later than the tenth day of the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates shall be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Securities Administrator shall give such notice to each Rating
Agency at the time such notice is given to Certificateholders. The Majority In
Interest of the Class I-C-1 or Class II Certificates, as applicable, that are
exercising the right to purchase the Mortgage Loans under Section 11.01 shall,
no later than the Business Day prior to the Distribution Date on which the final
distribution is to be made, remit the Termination Price to the Securities
Administrator for deposit in the Distribution Account.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class, in each case on the final Distribution Date and in the order set forth in
Section 8.05, in proportion to their respective Percentage Interests, with
respect to Certificateholders of the same Class, an amount, from Available
Funds, equal to the Certificate Principal Balance thereof plus accrued interest
thereon.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, upon written request of the Holders of the Residual Certificates
to the Securities Administrator at the applicable Corporate Trust Office, the
Holders of the Residual Certificates shall be entitled to all unclaimed funds
and other assets of the Trust Fund which remain subject hereto.
SECTION 11.03 Additional Termination Requirements.
------------------------------------
(a) If the Clean-up Call is exercised as provided in Section 11.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Securities Administrator has been supplied with an
Opinion of Counsel, at the expense of the Sponsor, to the effect that the
failure to comply with the requirements of this Section 11.03 shall not (i)
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result in the imposition of taxes on "prohibited transactions" on any REMIC as
defined in section 860F of the Code, or (ii) cause any REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date set forth in
the notice given by the Majority In Interest of the Class I-C-1 Certificates or
Class II-C Certificates that are exercising the right to purchase the Mortgage
Loans under Section 11.01, at the expense of such Majority In Interest, the
Securities Administrator shall adopt a plan of complete liquidation with respect
to the related REMICs within the meaning of section 860F(a)(4) of the Code which
meets the requirements of a qualified liquidation;
(ii) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Securities Administrator shall sell all of the assets
of related REMICs to the Majority In Interest of the applicable Class C
Certificates that are exercising the right to purchase the related Mortgage
Loans under Section 11.01 for cash in accordance with Section 11.01;
(iii) On the date specified for final payment of the related
Certificates, the Securities Administrator shall cause to be made final
distributions of principal and interest on the Certificates in accordance with
Section 11.02 and, after payment of, or provision for any outstanding expenses,
distribute or credit, or cause to be distributed or credited, to the Holders of
the Residual Certificates all cash on hand with respect to the related REMICs
after such final payment (other than cash retained to meet claims), and the
related REMICs) shall terminate at that time;
(iv) REMIC II, REMIC III, REMIC IV, REMIC V, REMIC VI and REMIC VII
will be terminated on the same date that REMIC I is terminated and REMIC A2,
REMIC A3, REMIC A4, REMIC A5 and REMIC A6 will be terminated on the same date
that REMIC A1 is terminated; and
(v) In no event may the final payment on the related Certificates or
the final distribution or credit to the Holders of the Residual Certificates
with respect to the related REMICs be made after the 89th day from the date on
which the plan of complete liquidation for such REMICs is adopted.
(b) The Securities Administrator as agent for any REMIC hereby agrees to
adopt and sign such a plan of complete liquidation upon the written request of
the Majority In Interest of the Class I-C-1 or Class II-C Certificates that are
exercising the right to purchase the Mortgage Loans under Section 11.01 and to
take such other action in connection therewith as may be reasonably requested by
such Majority In Interest.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Securities Administrator to adopt and sign a plan of complete
liquidation.
184
ARTICLE XII
REMIC ADMINISTRATION
SECTION 12.01 REMIC Administration.
---------------------
(a) The REMIC elections as set forth in the Preliminary Statement shall be
made on Forms 1066 or other appropriate federal tax or information return
prepared by the Securities Administrator and signed by the Trustee for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement. Following the Closing
Date, the Securities Administrator shall apply to the Internal Revenue Service
for an employer identification number for each REMIC created hereunder by means
of a Form SS-4 or other acceptable method and shall file a Form 8811 with the
Internal Revenue Service. The Securities Administrator shall also apply for an
employer identification number by means of a Form SS-4 for the Issuing Entity
separate and apart from any Trust REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the
Final Scheduled Distribution Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax-related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer).
(d) The Securities Administrator shall prepare and file and the Trustee
shall sign, each REMIC's federal and state tax and information returns as such
REMIC's direct representative. The expenses of preparing and filing such returns
shall be borne by the Securities Administrator.
(e) The Securities Administrator or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Securities Administrator shall provide,
upon receipt of additional reasonable compensation, (i) to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization pursuant to Treasury Regulation Section 1.860E-2(a)(5)
and any person designated in section 860E(e)(3) of the Code and (ii) to the
185
Securities Administrator such information as is necessary for the Securities
Administrator to provide to the Certificateholders such information or reports
as are required by the Code or REMIC Provisions.
(f) To the extent within their control, the Securities Administrator and
the Holders of Certificates shall take any action or cause any REMIC to take any
action reasonably necessary to maintain the status of any REMIC as a REMIC under
the REMIC Provisions or to maintain the status of any grantor trust created
hereunder as a grantor trust, and shall assist each other as necessary to create
or maintain such status. None of the Securities Administrator or the Holder of
any Residual Certificate shall knowingly take any action, cause any REMIC or
grantor trust to take any action or fail to take (or fail to cause to be taken)
any action that, under the REMIC Provisions or the Code generally , if taken or
not taken, as the case may be, could (i) endanger the status of any REMIC as a
REMIC or grantor trust as a grantor trust, or (ii) result in the imposition of a
tax upon any REMIC (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth on Section 860G(d) of the Code) or the imposition of a
tax upon any grantor trust created hereunder (either such event, an "Adverse
REMIC Event") unless the Securities Administrator shall have received an Opinion
of Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such status or result in
the imposition of such a tax. In addition, prior to taking any action with
respect to any REMIC or the assets therein, or causing any REMIC to take any
action, which is not expressly permitted under the terms of this Agreement, any
Holder of a Residual Certificate will consult with the Securities Administrator
or their respective designees, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to any REMIC, and no
such Person shall take any such action or cause any REMIC to take any such
action as to which the Securities Administrator has advised it in writing that
an Adverse REMIC Event could occur; provided, however, that if no Adverse REMIC
Event would occur but such action could result in the imposition of additional
taxes on the Residual Certificateholders, no such Person shall take any such
action, or cause any REMIC to take any such action without the written consent
of the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental authorities.
To the extent that such taxes are not paid by a Residual Certificateholder, the
Securities Administrator shall pay any remaining REMIC taxes out of current or
future amounts otherwise distributable to the Holder of the Residual Certificate
in any such REMIC or, if no such amounts are available, out of other amounts
held in the Distribution Account, and shall reduce amounts otherwise payable to
holders of regular interests in any such REMIC, as the case may be.
(h) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(j) The Securities Administrator shall not enter into any arrangement by
which any REMIC will receive a fee or other compensation for services.
186
(k) The largest percentage holder of the Class R and Class RX Certificates
shall be the "tax matters person" as defined in the REMIC Provisions (the "Tax
Matters Person") with respect to their respective REMICs. The Securities
Administrator shall act as agent for the Holder of the Class R and Class RX
Certificates in such roles, unless and until another party is so designated by
the Holder of the Class R or the Class RX Certificate.
(l) The Securities Administrator shall treat the rights of the Class I and
Class II Certificates to receive Basis Risk Shortfall Carryover Amounts as
rights in limited recourse notional principal contracts as provided in Sections
8.02, 8.04 and 8.09.
SECTION 12.02 Prohibited Transactions and Activities.
---------------------------------------
None of the Depositor, the Trustee, Master Servicer or the Securities
Administrator shall (a) sell, dispose of, or substitute for any of the Mortgage
Loans, except in a disposition pursuant to (i) the foreclosure of a Mortgage
Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination of one or
more REMICs pursuant to Article XI, or (iv) a substitution or a repurchase of
Mortgage Loans pursuant to Article II or (b) acquire any assets for any REMIC,
or (c) sell or dispose of any investments in the Distribution Account for gain,
or accept any contributions to any REMIC after the Closing Date, unless it has
received an Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (i) affect adversely the status of any such REMIC as a
REMIC or of the interests therein other than the Residual Certificate as the
regular interests therein, (ii) affect the distribution of interest or principal
on the Certificates, (iii) result in the encumbrance of the assets transferred
or assigned to the Trust Fund (except pursuant to the provisions of this
Agreement) or (iv) cause any such REMIC to be subject to any tax including a tax
on prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
SECTION 12.03 Indemnification with Respect to Prohibited Transactions
---------------------------------------------------------
or Loss of REMIC Status.
------------------------
In the event that a REMIC fails to qualify as a REMIC, loses its status as
a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to a
violation of this Pooling Agreement or due to the negligent performance by the
Securities Administrator, the Trustee or the Master Servicer of its duties and
obligations set forth herein, the Trustee, the Securities Administrator or the
Master Servicer, as applicable, shall indemnify the Certificateholders of the
related Residual Certificate against any and all losses, claims, damages,
liabilities or expenses ("Losses") resulting from such negligence; provided,
however, that such party shall not be liable for any such Losses attributable to
the action or another party to this Agreement or the Holder of the Residual
Certificate, nor for any such Losses resulting from misinformation provided by
any of the foregoing parties on which such party has relied. Notwithstanding the
foregoing, however, in no event shall the Trustee, the Securities Administrator,
the Master Servicer or any Servicer have any liability (a) for any action or
omission that is taken in accordance with and in compliance with the express
terms of, or which is expressly permitted by the terms of, this Agreement or the
related Servicing Agreement and (b) for any special or consequential damages to
Certificateholders of the related Residual Certificate (in addition to payment
of principal and interest on the Certificates).
187
ARTICLE XIII
AMENDMENT
SECTION 13.01 Without Consent of the Certificateholders.
------------------------------------------
(a) This Agreement may be amended from time to time by the Depositor, the
Seller, the Master Servicer, the Securities Administrator, any Servicer and the
Trustee without the consent of any of the Certificateholders but with the
consent of the Cap Provider and the Swap Provider (i) to cure any ambiguity or
mistake, (ii) to correct any defective provision herein or to supplement any
provision herein which may be inconsistent with any other provision herein or
(iii) to add to the duties of the Depositor, the Seller, the Securities
Administrator, the Master Servicer, the Servicers or the Trustee, but only if
such duties would not constitute a significant change to the permitted
activities of the Issuing Entity; provided that any such amendment shall not, as
evidenced by an Opinion of Counsel, which Opinion of Counsel shall be expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee, the Master Servicer, the Securities Administrator or the Trust Fund,
adversely affect in any material respect the interests of any Certificateholder;
and provided further, that the amendment shall not be deemed to adversely affect
in any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading, withdrawal or qualification
of the respective ratings then assigned to the Certificate.
(b) The Trustee, the Depositor, the Securities Administrator, the Master
Servicer and the Servicers also may at any time and from time to time amend this
Agreement without the consent of the Certificateholders to modify, eliminate or
add to any of its provisions to such extent as shall be necessary or helpful to
(i) maintain the qualification of any Trust REMIC as a REMIC under the Code or
any grantor trust created hereunder as a grantor trust under the Code, (ii)
avoid or minimize the risk of the imposition of any tax on any Trust REMIC or
grantor trust pursuant to the Code that would be a claim at any time prior to
the final redemption of the Certificates or (iii) comply with any other
requirements of the Code; provided that the Trustee has been provided an Opinion
of Counsel, which opinion shall be an expense of the party requesting such
opinion but in any case shall not be an expense of the Trustee, the Master
Servicer, the Securities Administrator or the Trust Fund, to the effect that
such action is necessary or helpful to, as applicable, maintain such
qualification, avoid or minimize the risk of the imposition of such a tax or
comply with any such requirements of the Code and does not have a material
adverse effect on the rights and obligations of the Cap Provider or Swap
Provider.
SECTION 13.02 With Consent.
-------------
This Agreement also may be amended from time to time by the Depositor, the
Seller, the Securities Administrator, the Master Servicer, the Servicers and the
Trustee with the consent of the Holders of a Majority in Interest of each Class
of Certificates affected thereby and the Cap Provider and the Swap Provider for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Holders of Certificates; provided, however, that no such amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
188
required to be distributed on any Certificate without the consent of the Holder
of such Certificate, (ii) adversely affect in any material respect the interests
of the Holders of any Class of Certificates in a manner other than as described
in clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating 662/3%, or (iii)
reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all such Certificates then Outstanding.
SECTION 13.03 Procedure and Notice.
---------------------
(a) Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder, each Rating Agency and the Cap Provider and the Swap
Provider.
(b) It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(c) Notwithstanding any contrary provision of this Agreement, neither the
Trustee nor the Securities Administrator shall consent to any amendment to this
Agreement unless it shall have first received an Opinion of Counsel, which
opinion shall not be an expense of the Trustee, the Securities Administrator or
the Trust Fund, to the effect that such amendment (i) is permitted by this
Agreement and all conditions required to be satisfied for the amendment to be
effective have been satisfied and (ii) shall not cause (a) any federal tax to be
imposed on the Trust Fund, including without limitation, any federal tax imposed
on "prohibited transactions" under Section 860F(a)(l) of the Code or on
"contributions after the Startup Date" under Section 860G(d)(l) of the Code, or
(b) any REMIC created hereunder to fail to qualify as a REMIC or any grantor
trust created hereunder to fail to qualify as a grantor trust under the Code at
any time that any Certificate is Outstanding.
(d) Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, which Opinion shall not be an
expense of the Trustee or the Trust Fund, satisfactory to the Trustee that such
amendment is permitted by this Agreement and that all requirements for amending
this Agreement have been complied with.
The Trustee may, but shall not be obligated to, enter into any amendment
which negatively affects the Trustee's own rights, duties or immunities under
this Agreement.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Binding Nature of Agreement; Assignment.
----------------------------------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
189
SECTION 14.02 Entire Agreement.
-----------------
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
SECTION 14.03 Counterparts.
-------------
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which together shall constitute
one and the same instrument.
SECTION 14.04 Provision of Information.
-------------------------
For so long as any of the Certificates of any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Securities Administrator and the Trustee agree to cooperate with
each other to provide to any Certificateholders and to any prospective purchaser
of Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee or
the Securities Administrator in providing such information shall be reimbursed
by the Depositor.
SECTION 14.05 Governing Law.
--------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
RULES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, WHICH THE
PARTIES HERETO EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING
LAW HEREUNDER) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 14.06 Notices.
--------
(a) The Securities Administrator shall promptly provide notice to each
Rating Agency of its resignation.
(b) The Securities Administrator shall make available to each Rating Agency
copies of each report to Certificateholders described in Section 4.06.
190
(c) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered by first class mail, by
courier or by facsimile transmission to the following addresses or such other
address as may hereafter be furnished to the Trustee:
(i) in the case of the Depositor:
Xxxxx Asset Securitization, Inc.
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
in the case of the Trustee, the Corporate Trust
Office or such other address as the Trustee may
hereafter furnish to the other parties hereto;
(ii) in the case of if to the Seller:
Maia Mortgage Finance Statutory Trust
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
191
(iii) in the case of the Master Servicer or the Securities
Administrator:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - Luminent 2007-1
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iv) in the case of the Rating Agencies, addressed to:
(A) Standard & Poor's, a division of the XxXxxx-Xxxx
Companies
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Structured Finance Ratings, Mortgage-
Backed Securities
and
(B) Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
SECTION 14.07 Severability of Provisions.
---------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 14.08 No Waivers.
-----------
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
192
SECTION 14.09 Headings Not to Affect Interpretation.
--------------------------------------
The headings contained in this Agreement are for convenience of reference
only, and they shall not be used in the interpretation hereof.
SECTION 14.10 No Petitions.
-------------
The Trustee, the Master Servicer, the Securities Administrator and the
Servicer, by entering into this Agreement, hereby covenant and agree that they
shall not at any time institute against the Depositor, or join in any
institution against the Depositor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to this Agreement or any of the documents entered into
by the Depositor in connection with the transactions contemplated by this
Agreement.
SECTION 14.11 Certificates Fully Paid and Nonassessable.
------------------------------------------
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
SECTION 14.12 Protection of Assets.
---------------------
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the Trust Fund created
by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell assets;
or
(iii) engage in any business or activities.
(b) Each of the Trustee, the Securities Administrator and the Depositor
agrees that it shall not file an involuntary bankruptcy petition against the
Trust Fund or initiate any other form of insolvency proceeding until after the
Certificates have been paid in full.
SECTION 14.13 Third Party Beneficiary. Nothing in this Agreement or in the
Certificates, expressed or implied, shall give to any Person, other than the
Certificateholders, the parties hereto, the Swap Provider and the Cap Provider
and their successors hereunder, any benefit or any legal or equitable right,
remedy or claim under this Agreement.
193
The Swap Provider and Cap Provider each shall be deemed a third-party
beneficiary of this Agreement to the same extent as if it were a party hereto,
and each shall have the right to enforce the provisions of this Agreement
directly against the parties to this Agreement.
[Signature Page Follows]
194
IN WITNESS WHEREOF, the Depositor, the Seller, the Servicer, the Master
Servicer, the Securities Administrator and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
XXXXX ASSET SECURITIZATION, INC., as
Depositor
By: /s/ Xxxxxxxxxxx X. Xxxx
------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Chief Financial Officer
HSBC BANK USA, National Association, as
Trustee
By: /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
MAIA MORTGAGE FINANCE STATUTORY
TRUST, as Seller
By: /s/ Xxxxxxxxxxx X. Xxxx
------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Trustee & President
XXXXX FARGO BANK, N.A., as Master Servicer
and as Securities Administrator
By: /s/ Xxx Xxxxx
------------------------
Name: Xxx Xxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
)
On the 24th day of January, 2007, before me, a notary public in and for the
State of New York, personally appeared Xxxxx Xxxxx, known to me who, being by me
duly sworn, did depose and say that s/he is an Assistant Vice President of Xxxxx
Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that s/he signed her/his name thereto by
order of the Board of Directors of such association.
Notary Public /s/ Xxxxx Xxxx
--------------
[Notarial Seal]
My commission expires 08/07/2010.
[Notary Page to the Pooling Agreement]
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
)
On the 25th day of January, 2007, before me, a notary public in and for the
State of Maryland, personally appeared Xxx Xxxxx, known to me who, being by me
duly sworn, did depose and say that s/he is a Vice President of Xxxxx Asset
Securitization, Inc., a Delaware corporation, one of the parties that executed
the foregoing instrument; and that s/he signed her/his name thereto by order of
the Board of Directors of such corporation.
Notary Public /s/ Xxxxxx X. Xxxxxxx
---------------------
[Notarial Seal]
My commission expires January 7, 2009.
[Notary Page to the Pooling Agreement]
STATE OF )
) ss.:
COUNTY OF )
)
On the ___ day of January, 2007, before me, a notary public in and for the State
of _____________, personally appeared ______________, known to me who, being by
me duly sworn, did depose and say that s/he is a _____________ of HSBC Bank USA,
National Association, a national banking association, one of the parties that
executed the foregoing instrument; and that s/he signed her/his name thereto by
order of the Board of Directors of such association.
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling Agreement]
STATE OF )
) ss.:
COUNTY OF )
)
On the ___ day of January 2007, before me, a notary public in and for the State
of ___________, personally appeared ___________________, known to me who, being
by me duly sworn, did depose and say that s/he is a __________________ of MAIA
Mortgage Finance Statutory Trust, a Maryland business trust, one of the parties
that executed the foregoing instrument; and that s/he signed her/his name
thereto by order of the Board of Directors of such trust.
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling Agreement]
SCHEDULE A-1
Group 1 Mortgage Loan Schedule
SCHEDULE A-2
Group 2 Mortgage Loan Schedule
POOLING AGREEMENT
EXHIBITS
TABLE OF CONTENTS
EXHIBITS
Exhibit A-1 - Form of Class A Certificate
Exhibit A-2 - Form of Class B Certificate
Exhibit A-3 - Form of Class I-C-1 and II-C Certificate
Exhibit A-4 - Form of Class I-C-2 Certificate
Exhibit A-5 - Form of Class P Certificate
Exhibit A-6 - Form of Residual Certificate
Exhibit B - Information Fields for Mortgage Loan Schedule
Exhibit C - Contents of each Mortgage File
Exhibit D - Form of Request for Release
Exhibit E - Form of Transferor Certificate
Exhibit F-1 - Form of Investment Letter (Non- Rule 144A)
Exhibit F-2 - Form of Investment Letter (Rule 144A)
Exhibit G - Form of Benefit Plan Affidavit
Exhibit H - Form of Affidavit Regarding Transfer of Residual Certificate
Exhibit I - Additional Form 10-D Disclosure
Exhibit J - Additional Form 10-K Disclosure
Exhibit K - Additional Form 8-K Disclosure
Exhibit L - Additional Disclosure Notification
Exhibit M - Form of Confirmation to Cap Agreement
Exhibit N - Form of Confirmation to Swap Agreement
Exhibit O - Triad Commitment Letters
Exhibit 1122 - Servicing Criteria
Exhibit SOX - Sarbanes Oxley Certificate
SCHEDULES
Schedule A-1 - Group 1 Mortgage Loan Schedule
Schedule A-2 - Group 2 Mortgage Loan Schedule
EXHIBIT A - 1
Form of Class [I] [II]-A [-] Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE SECURITIES
ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [ - ] OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [ - ] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, [ - ], HAS AN INTEREST HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
[For Class I-A-1 and Class I-A-2 Certificates only] [FOR SO LONG AS THE
SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, A TRANSFER OF THIS CERTIFICATE WILL
NOT BE REGISTERED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR
EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS NOT AN EMPLOYEE BENEFIT PLAN AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA") THAT IS SUBJECT TO TITLE I OF ERISA OR A PLAN AS DEFINED IN
SECTION 4975(E)(1) OF THE CODE THAT IS SUBJECT TO SECTION 4975 OF THE CODE OR AN
ENTITY THAT HOLDS ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN (OR IS DEEMED
TO HOLD THE ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR
SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF SUCH
EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN THE ENTITY (COLLECTIVELY, A
"BENEFIT PLAN") OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR
CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO PROHIBITED
TRANSACTION PROVISIONS OF ERISA OR THE CODE OR THE FIDUCIARY PROVISIONS OF ERISA
("SIMILAR LAW") (SUCH A PLAN, TOGETHER WITH A BENEFIT PLAN, A "PLAN") NOR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN NOR USING THE ASSETS OF ANY SUCH PLAN
TO EFFECT SUCH TRANSFER OR (B) (X), IN THE CASE OF A BENEFIT PLAN, THE PLAN IS
AN ACCREDITED INVESTOR WITHIN THE MEANING OF THE DEPARTMENT OF LABOR PROHIBITED
A-1-1
TRANSACTION ADMINISTRATIVE EXEMPTION GRANTED TO GREENWICH CAPITAL MARKETS, INC.
AND (Y) THE ACQUISITION AND HOLDING OF SUCH CERTIFICATE AND THE SEPARATE RIGHT
TO RECEIVE PAYMENTS FROM THE SUPPLEMENTAL INTEREST TRUST MEETS ALL OF THE
CONDITIONS TO QUALIFY FOR EXEMPTIVE RELIEF (IN THE CASE OF A BENEFIT PLAN)
AVAILABLE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 84-14 (FOR TRANSACTIONS
BY INDEPENDENT "QUALIFIED PROFESSIONAL ASSET MANAGERS") OR THE PROHIBITED
TRANSACTION STATUTORY EXEMPTION SET FORTH IN SECTION 408(B)(17) OF ERISA (FOR
TRANSACTIONS WITH CERTAIN SERVICE PROVIDERS), 91-38 (FOR TRANSACTIONS BY BANK
COLLECTIVE INVESTMENT FUNDS), 90-1 (FOR TRANSACTIONS BY INSURANCE COMPANY POOLED
SEPARATE ACCOUNTS), 95-60 (FOR TRANSACTIONS BY INSURANCE COMPANY GENERAL
ACCOUNTS), OR 96-23 (FOR TRANSACTIONS EFFECTED BY "IN-HOUSE ASSET MANAGERS") AND
WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW
OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE
MASTER SERVICER, THE SERVICER, UNDERWRITER, THE SECURITIES ADMINISTRATOR OR THE
TRUSTEE TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE
POOLING AND SERVICING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE TRUSTEE, THE MASTER
SERVICER, THE SERVICER OR UNDERWRITER. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED
BY THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH
PERSON HAS PROVIDED SUCH REPRESENTATION LETTER OR OPINION OF COUNSEL REFERRED TO
IN THE PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND
SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN
VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO
RIGHTS IN ANY PURPORTED TRANSFEREE.]
[For Class II -A-1 certificates only] [FOR SO LONG AS THE FINAL MATURITY RESERVE
TRUST IS IN EXISTENCE, A TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS
THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER (I) A
REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES
ADMINISTRATOR STATING THAT (A) IT IS NOT AN EMPLOYEE BENEFIT PLAN AS DEFINED IN
A-1-2
SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") THAT IS SUBJECT TO TITLE I OF ERISA OR A PLAN AS DEFINED IN SECTION
4975(E)(1) OF THE CODE THAT IS SUBJECT TO SECTION 4975 OF THE CODE OR AN ENTITY
THAT HOLDS ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN (OR IS DEEMED TO HOLD
THE ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION
2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF SUCH EMPLOYEE
BENEFIT PLAN'S OR PLAN'S INVESTMENT IN THE ENTITY (COLLECTIVELY, A "BENEFIT
PLAN") OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR CHURCH
PLAN (AS DEFINED IN SECTION 3(33) OF ERISA) THAT IS SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO PROHIBITED TRANSACTION
PROVISIONS OF ERISA OR THE CODE OR THE FIDUCIARY PROVISIONS OF ERISA ("SIMILAR
LAW") (SUCH A PLAN, TOGETHER WITH A BENEFIT PLAN, A "PLAN") NOR A PERSON ACTING
ON BEHALF OF ANY SUCH PLAN NOR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
TRANSFER OR (B) OR (B) (X), IN THE CASE OF A BENEFIT PLAN, THE PLAN IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF THE DEPARTMENT OF LABOR PROHIBITED
TRANSACTION ADMINISTRATIVE EXEMPTION GRANTED TO GREENWICH CAPITAL MARKETS, INC.
AND (Y) THE ACQUISITION AND HOLDING OF SUCH CERTIFICATE AND THE SEPARATE RIGHT
TO RECEIVE PAYMENTS FROM THE FINAL MATURITY RESERVE TRUST MEETS ALL OF THE
CONDITIONS TO QUALIFY FOR EXEMPTIVE RELIEF (IN THE CASE OF A BENEFIT PLAN)
AVAILABLE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 84-14 (FOR TRANSACTIONS
BY INDEPENDENT "QUALIFIED PROFESSIONAL ASSET MANAGERS"), 91-38 (FOR TRANSACTIONS
BY BANK COLLECTIVE INVESTMENT FUNDS), 90-1 (FOR TRANSACTIONS BY INSURANCE
COMPANY POOLED SEPARATE ACCOUNTS), 95-60 (FOR TRANSACTIONS BY INSURANCE COMPANY
GENERAL ACCOUNTS), OR 96-23 (FOR TRANSACTIONS EFFECTED BY "IN-HOUSE ASSET
MANAGERS") OR THE PROHIBITED TRANSACTION STATUTORY EXEMPTION SET FORTH IN
SECTION 408(B)(17) OF ERISA (FOR TRANSACTIONS WITH CERTAIN SERVICE PROVIDERS)
AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW
OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE
MASTER SERVICER, THE SERVICER, UNDERWRITER, THE SECURITIES ADMINISTRATOR OR THE
TRUSTEE TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE
POOLING AND SERVICING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
A-1-3
EXPENSE OF THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE TRUSTEE, THE MASTER
SERVICER, THE SERVICER OR UNDERWRITER. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED
BY THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH
PERSON HAS PROVIDED SUCH REPRESENTATION LETTER OR OPINION OF COUNSEL REFERRED TO
IN THE PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND
SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN
VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO
RIGHTS IN ANY PURPORTED TRANSFEREE.]
[For Class II-A-2 and Class II-A-3 Certificates only] [A TRANSFER OF THIS
CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES
ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE SECURITIES ADMINISTRATOR STATING THAT EITHER (A) IT IS NOT
AN EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") THAT IS SUBJECT TO TITLE I OF
ERISA OR A PLAN AS DEFINED IN SECTION 4975(E)(1) OF THE CODE THAT IS SUBJECT TO
SECTION 4975 OF THE CODE OR AN ENTITY THAT HOLDS ASSETS OF SUCH AN EMPLOYEE
BENEFIT PLAN OR PLAN (OR IS DEEMED TO HOLD THE ASSETS OF SUCH AN EMPLOYEE
BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510.3-101 AS MODIFIED BY
SECTION 3(42) OF ERISA) BY REASON OF SUCH EMPLOYEE BENEFIT PLAN'S OR PLAN'S
INVESTMENT IN THE ENTITY (COLLECTIVELY, A "BENEFIT PLAN") OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS
SUBSTANTIALLY SIMILAR TO PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE
OR THE FIDUCIARY PROVISIONS OF ERISA ("SIMILAR LAW") (SUCH A PLAN, TOGETHER WITH
A BENEFIT PLAN, A "PLAN") NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN NOR
USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH TRANSFER OR (B) IF IT IS AN
INSURANCE COMPANY (IN THE CASE OF A BENEFIT PLAN), THAT THE SOURCE OF FUNDS USED
TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTCE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN SUBJECT TO
ERISA OR THE CODE WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S
RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN
AND ALL OTHER SUCH PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF
AS DEFINED IN SECTION V(A)(1) OF PTCE 95-60) OR BY THE SAME EMPLOYEE
ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH
A-1-4
GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTCE
95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH
GENERAL ACCOUNT ARE PLANS TO WHICH PTCE 95-60 APPLIES AND THE ACQUISITION AND
HOLDING OF SUCH CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION WITHIN THE MEANING OF SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE OR A VIOLATION OF SIMILAR LAW, OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL NOT
SUBJECT THE DEPOSITOR, THE MASTER SERVICER, THE SERVICER, UNDERWRITER, THE
SECURITIES ADMINISTRATOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE)
IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE SECURITIES ADMINISTRATOR, THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE SERVICER OR UNDERWRITER. EACH
PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN WILL BE DEEMED TO
HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO
IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON HAS PROVIDED SUCH REPRESENTATION
LETTER OR OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
SECURITIES ADMINISTRATOR.. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY
ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL
BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.]
A-1-5
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [I] [II]-A [-]
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR.
PASS-THROUGH RATE: Variable CERTIFICATE PRINCIPAL BALANCE OF THE
CLASS [I] [II]-A [-] CERTIFICATES AS
OF THE CLOSING DATE: $[ - ]
DATE OF POOLING AGREEMENT:
AS OF JANUARY 1, 2007 CERTIFICATE PRINCIPAL BALANCE OF ITS
CLASS [I] [II]-A [-] CERTIFICATE:
$[ - ]
CLOSING DATE: JANUARY 25, 2007
FIRST DISTRIBUTION DATE: MASTER SERVICER: XXXXX FARGO
FEBRUARY 25, 2007 BANK, N.A.
PERCENTAGE INTEREST: 100% TRUSTEE: HSBC BANK USA, NATIONAL
ASSOCIATION
NO. [-]
CUSIP NO.: [ - ]
A-1-6
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [I] [II]-A [-]
evidencing a beneficial ownership interest in a Trust Fund that consists
primarily of two pools of Mortgage Loans (the "Mortgage Loans") formed and sold
by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
UNDERWRITERS, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR,
THE SELLER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. UNLESS EXPRESSLY PROVIDED IN
THE PROSPECTUS SUPPLEMENT, THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class [I] [II]-A-[ - ] Certificates issued by Luminent Mortgage Trust
0000-0 (xxx "Xxxxx Xxxx"), which was created pursuant to a Pooling Agreement,
dated as of January 1, 2007 (the "Pooling Agreement") by and among Xxxxx Asset
Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage Finance
Statutory Trust, as seller (the "Seller"), HSBC Bank USA, National Association,
as trustee (the "Trustee"), and Xxxxx Fargo Bank, N.A., as master servicer (the
"Master Servicer") and securities administrator (the "Securities
Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned to them in the Pooling Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling Agreement, to which Pooling Agreement the Holder of
this Certificate, by virtue of the acceptance hereof, assents and by which such
Holder is bound.
Distributions of principal of and interest on this Certificate (including
the final distribution on this Certificate) will be made out of the Available
Funds, to the extent and subject to the limitations set forth in the Pooling
Agreement, on the 25th day of each month commencing in February 2007 or, if such
25th day is not a Business Day, the Business Day immediately following (a
"Distribution Date"), to the Person in whose name this Certificate is registered
at the close of business on the Business Day preceding such Distribution Date
(the related "Record Date"). All sums distributed on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Pass-Through Rate on the Class [I] [II]-A-[ - ] Certificates for any
Distribution Date will be variable. Principal and interest will be distributed
on this Certificate on any Distribution Date in the manner specified in the
Pooling Agreement. Distributions allocated to the Class [I] [II]-A [-]
Certificates will be allocated among the Certificates of such Class pro rata
A-1-7
based upon their respective Percentage Interests, with a final distribution to
be made upon retirement of this Certificate as set forth in the Pooling
Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1 (herein called the "Certificates") and representing
a Percentage Interest specified on the face hereof in the Class [I] [II]-A [-]
Certificates. The Certificates evidence in the aggregate 100% of the beneficial
ownership of the Trust Fund.
Certain Realized Losses on and certain other shortfalls in respect of the
Mortgage Loans will be allocated on any Distribution Date to Holders of Class
I-B Certificates by allocation to the Certificates of an Applied Loss Amount in
the manner set forth in the Pooling Agreement. Applied Loss Amounts will be
allocated on each Distribution Date to the Class I-B Certificates in reverse
order of their respective numerical Class designations until the respective
Certificate Principal Balance of each such Class is reduced to zero.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling Agreement. As provided in the Pooling Agreement, withdrawals from
the Distribution Account, the Custodial Account and related accounts shall be
made from time to time for purposes other than distributions to Holders, such
purposes including reimbursement of fees and expenses, including Advances made
by the Servicer, and certain expenses and indemnities amounts incurred with
respect to the Mortgage Loans and administration of the Trust Fund.
So long as this Certificate is registered in the name of a Depository or
its nominee, the Securities Administrator shall make distributions on each
Distribution Date to the Holder of such Certificate as of the related Record
Date either (i) by wire transfer of immediately available funds to the account
of such Holder at a bank or other entity having appropriate facilities therefor,
if such Holder has so notified the Securities Administrator at least five
Business Days prior to the related Record Date or (ii) by check mailed by first
class mail to such Holder at the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Securities Administrator
specified in the final distribution notice to Certificateholders.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator and the rights of the Holders under the Pooling Agreement at any
time by the Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator, with the consent of the Holders of a Majority of
Interest of each Class of Certificates (and in certain circumstances a higher
percentage of such Voting Interests as specified in the Pooling Agreement). Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
A-1-8
The Pooling Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling Agreement, the Certificates of this
Class will be registered as one or more certificates held by the Depository or
its nominee and beneficial interests will be held by Beneficial Owners through
the book-entry facilities of the Depository or its nominee in minimum
denominations of $100,000 and integral multiples of $1 in excess thereof.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, at the option of the Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon the surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Securities Administrator or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, the Master Servicer, the Securities Administrator,
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the majority holder of the Class I-C-1 or Class II-C
A-1-9
Certificates may make a Clean-up Call or cause a Clean-up Call to be made
pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling Agreement or be
valid for any purpose.
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-1-10
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ________________ XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:___________________________
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [I] [II]-A-[ - ] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:_____________________________
AUTHORIZED OFFICER
A-1-11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
A-1-12
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated: _________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
___________________________________________
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial bank
or trust company or by a member firm
of the New York Stock Exchange or another
national securities exchange. Notarized or
witnessed signatures are not acceptable.
A-1-13
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to____________________________________________________________,
for the account of _________________________, account number _________________,
or, if mailed by check, to ____________________________. Applicable reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
Form of Class [I] [II]-B [-] Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE SECURITIES
ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [ - ] OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [ - ] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, [ - ], HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 9.02 OF THE POOLING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
[For Class I -B-1, I-B-2, I-B-3 and I-B-4 certificates only] [FOR SO LONG AS THE
SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, A TRANSFER OF THIS CERTIFICATE WILL
NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR
EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR STATING THAT (A) IT IS NOT AN EMPLOYEE BENEFIT PLAN AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA") THAT IS SUBJECT TO TITLE I OF ERISA OR A PLAN AS DEFINED IN
SECTION 4975(E)(1) OF THE CODE THAT IS SUBJECT TO SECTION 4975 OF THE CODE OR AN
ENTITY THAT HOLDS ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN (OR IS DEEMED
TO HOLD THE ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR
SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF SUCH
EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN THE ENTITY (COLLECTIVELY, A
"BENEFIT PLAN") OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR
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CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO PROHIBITED
TRANSACTION PROVISIONS OF ERISA OR THE CODE OR THE FIDUCIARY PROVISIONS OF ERISA
("SIMILAR LAW") (SUCH A PLAN, TOGETHER WITH A BENEFIT PLAN, A "PLAN") NOR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN NOR USING THE ASSETS OF ANY SUCH PLAN
TO EFFECT SUCH TRANSFER OR (B)(X), IN THE CASE OF A BENEFIT PLAN, THE PLAN IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF THE DEPARTMENT OF LABOR PROHIBITED
TRANSACTION ADMINISTRATIVE EXEMPTION GRANTED TO GREENWICH CAPITAL MARKETS, INC.
AND (Y) THE ACQUISITION AND HOLDING OF SUCH CERTIFICATE AND THE SEPARATE RIGHT
TO RECEIVE PAYMENTS FROM THE SUPPLEMENTAL INTEREST TRUST MEETS ALL OF THE
CONDITIONS TO QUALIFY FOR EXEMPTIVE RELIEF (IN THE CASE OF A BENEFIT PLAN)
AVAILABLE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 84-14 (FOR TRANSACTIONS
BY INDEPENDENT "QUALIFIED PROFESSIONAL ASSET MANAGERS"), 91-38 (FOR TRANSACTIONS
BY BANK COLLECTIVE INVESTMENT FUNDS), 90-1 (FOR TRANSACTIONS BY INSURANCE
COMPANY POOLED SEPARATE ACCOUNTS), 95-60 (FOR TRANSACTIONS BY INSURANCE COMPANY
GENERAL ACCOUNTS), OR 96-23 (FOR TRANSACTIONS EFFECTED BY "IN-HOUSE ASSET
MANAGERS") OR THE PROHIBITED TRANSACTION STATUTORY EXEMPTION SET FORTH IN
SECTION 408(B)(17) OF ERISA (FOR TRANSACTIONS WITH CERTAIN SERVICE PROVIDERS)
AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW
OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE
MASTER SERVICER, THE SERVICER, UNDERWRITER, THE SECURITIES ADMINISTRATOR OR THE
TRUSTEE TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE
POOLING AND SERVICING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE TRUSTEE, THE MASTER
SERVICER, THE SERVICER OR UNDERWRITER. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED
BY THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH
PERSON HAS PROVIDED SUCH REPRESENTATION LETTER OR OPINION OF COUNSEL REFERRED TO
IN THE PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND
SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN
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VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO
RIGHTS IN ANY PURPORTED TRANSFEREE.]
[For the Class I-B-1, Class I-B-2, Class I-B-3 and Class I-B-4 Certificates
only] [IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR
ITS EQUIVALENT BY S&P, FITCH OR XXXXX'X, THE PURCHASE AND HOLDING OF THIS
CERTIFICATE BY OR ON BEHALF OF ANY PLAN (AS DEFINED ABOVE) MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA OR THE CODE OR A VIOLATION
OF SIMILAR LAW. IF THE RATING OF THIS CERTIFICATE FALLS BELOW BBB- OR ITS
EQUIVALENT BY S&P, FITCH OR XXXXX'X, TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER (I) A
REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES
ADMINISTRATOR, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, ANY
SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF
IT IS AN INSURANCE COMPANY (IN THE CASE OF A BENEFIT PLAN), THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTCE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO PLAN SUBJECT TO ERISA OR THE CODE WITH RESPECT TO WHICH THE AMOUNT OF SUCH
GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON
BEHALF OF SUCH PLAN AND ALL OTHER SUCH PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTCE 95-60) OR BY THE SAME
EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES
OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF
PTCE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN
SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTCE 95-60 APPLIES AND THE ACQUISITION
AND HOLDING OF SUCH CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION WITHIN THE MEANING OF SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE OR A VIOLATION OF SIMILAR LAW, OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR
LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE MASTER SERVICER, THE SERVICER, THE
SECURITIES ADMINISTRATOR, AN UNDERWRITER OR THE TRUSTEE TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OF SECTION 4975 OF
THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT
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WHICH OPINION SHALL NOT BE AT THE EXPENSE OF THE SECURITIES ADMINISTRATOR, THE
DEPOSITOR, THE SERVICER, THE MASTER SERVICER, AN UNDERWRITER OR THE TRUSTEE.
EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN AT ANY TIME
THAT THIS CERTIFICATE HAS A RATING LOWER THAN BBB- OR ITS EQUIVALENT BY S&P,
FITCH OR XXXXX'X SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY
THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH
PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL
REFERRED TO IN THE PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE
POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED
TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND
WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.]
[For Class II-B-1 through II-B-6 certificates only] [A TRANSFER OF THIS
CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES
ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE SECURITIES ADMINISTRATOR STATING THAT (A) IT IS NOT AN
EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") THAT IS SUBJECT TO TITLE I OF
ERISA OR A PLAN AS DEFINED IN SECTION 4975(E)(1) OF THE CODE THAT IS SUBJECT TO
SECTION 4975 OF THE CODE OR AN ENTITY THAT HOLDS ASSETS OF SUCH AN EMPLOYEE
BENEFIT PLAN OR PLAN (OR IS DEEMED TO HOLD THE ASSETS OF SUCH AN EMPLOYEE
BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510.3-101 AS MODIFIED BY
SECTION 3(42) OF ERISA) BY REASON OF SUCH EMPLOYEE BENEFIT PLAN'S OR PLAN'S
INVESTMENT IN THE ENTITY (COLLECTIVELY, A "BENEFIT PLAN") OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS
SUBSTANTIALLY SIMILAR TO PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE
OR THE FIDUCIARY PROVISIONS OF ERISA ("SIMILAR LAW") (SUCH A PLAN, TOGETHER WITH
A BENEFIT PLAN, A "PLAN") NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR (B),
IN THE CASE OF A BENEFIT PLAN, IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTCE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO PLAN SUBJECT TO ERISA OR THE CODE WITH RESPECT TO WHICH THE AMOUNT OF SUCH
GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON
BEHALF OF SUCH PLAN AND ALL OTHER SUCH PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTCE 95-60) OR BY THE SAME
EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES
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OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF
PTCE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN
SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTCE 95-60 APPLIES AND THAT THE
ACQUISITION AND HOLDING OF SUCH CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW, OR (II) AN OPINION OF COUNSEL,
IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH
PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW
AND WILL NOT SUBJECT THE DEPOSITOR, THE MASTER SERVICER, THE SERVICER,
UNDERWRITER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF
THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE SECURITIES
ADMINISTRATOR, THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE SERVICER OR
UNDERWRITER. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON HAS PROVIDED
SUCH REPRESENTATION LETTER OR OPINION OF COUNSEL REFERRED TO IN THE PRECEDING
SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING AGREEMENT
PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.]
THE CLASS [I] [II]-B [-] CERTIFICATES ARE SUBORDINATED TO THE CLASS A, [AND]
CLASS [I] [II]-B [-] CERTIFICATES ISSUED BY THE TRUST DESCRIBED HEREIN TO THE
EXTENT DESCRIBED HEREIN AND IN THE POOLING AGREEMENT REFERRED TO HEREIN.
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LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [I] [II]-B [-]
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR.
PASS-THROUGH RATE: Variable CERTIFICATE PRINCIPAL BALANCE OF THE CLASS [I] [II]-B [-]
CERTIFICATES AS OF THE CLOSING DATE: $[ - ]
DATE OF POOLING AGREEMENT:
AS OF JANUARY 1, 2007 CERTIFICATE PRINCIPAL BALANCE OF THIS CLASS [I] [II]-B [-]
CERTIFICATE AS OF THE CLOSING DATE: $[ - ]
CLOSING DATE: JANUARY 25, 2007
MASTER SERVICER: XXXXX FARGO
FIRST DISTRIBUTION DATE: BANK, N.A.
FEBRUARY 25, 2007
TRUSTEE: HSBC BANK USA, NATIONAL ASSOCIATION
PERCENTAGE INTEREST: 100%
CUSIP NO.: [ - ]
NO. [-]
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [I] [II]-B [-]
evidencing a beneficial ownership interest in a Trust Fund, which Trust Fund
consists primarily of two pools of Mortgage Loans (the "Mortgage Loans") formed
and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
UNDERWRITERS, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR,
THE SELLER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. UNLESS EXPRESSLY PROVIDED IN
THE PROSPECTUS SUPPLEMENT, THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class [I] [II]-B [-] Certificates issued by Luminent Mortgage Trust
0000-0 (xxx "Xxxxx Xxxx"), which was created pursuant to a Pooling Agreement,
dated as of January 1, 2007 (the "Pooling Agreement") by and among Xxxxx Asset
Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage Finance
Statutory Trust, as seller (the "Seller"), HSBC Bank USA, National Association,
as trustee (the "Trustee"), and Xxxxx Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned to them in the Pooling Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling Agreement, to which Pooling Agreement the Holder of
this Certificate, by virtue of the acceptance hereof, assents and by which such
Holder is bound.
Distributions of principal of and interest on this Certificate (including
the final distribution on this Certificate) will be made out of the Available
Funds, to the extent and subject to the limitations set forth in the Pooling
Agreement, on the 25th day of each month commencing in February 2007 or, if such
25th day is not a Business Day, the Business Day immediately following (a
"Distribution Date"), to the Person in whose name this Certificate is registered
at the close of business on the Business Day preceding such Distribution Date
(the related "Record Date"). All sums distributed on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Pass-Through Rate on the Class [I] [II]-B [-] Certificates for any
Distribution Date will be variable. Principal and interest will be distributed
on this Certificate on any Distribution Date in the manner specified in the
Pooling Agreement. Distributions allocated to the Class [I] [II]-B [-]
Certificates will be allocated among the Certificates of such Class pro rata
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based upon their respective Percentage Interests, with a final distribution to
be made upon retirement of this Certificate as set forth in the Pooling
Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1 (herein called the "Certificates") and representing
a Percentage Interest specified on the face hereof in the Class [I] [II]-B [-]
Certificates. The Certificates evidence in the aggregate 100% of the beneficial
ownership of the Trust Fund.
The Class [I] [II]-B [-] Certificates will be subordinated to the Class A
[and] Class [B- ] Certificates, and the Class I-C-1, Class I-C-2, Class R and
Class RX Certificates will be subordinated to the Class I-B-1 through Class
I-B-4 Certificates, in each case to the extent provided in the Pooling
Agreement.
Certain Realized Losses on and certain other shortfalls in respect of the
Mortgage Loans will be allocated on any Distribution Date to Holders of Class
I-B Certificates by allocation to the related Certificates of an Applied Loss
Amount in the manner set forth in the Pooling Agreement. Applied Loss Amounts
will be allocated on each Distribution Date to the Class I-B Certificates in
reverse order of their respective numerical Class designations until the
respective Certificate Principal Balance of each such Class is reduced to zero.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling Agreement. As provided in the Pooling Agreement, withdrawals from
the Distribution Account, the Custodial Account and related accounts shall be
made from time to time for purposes other than distributions to Holders, such
purposes including reimbursement of fees and expenses, including Advances made
by the Servicer, and certain expenses and indemnities amounts incurred with
respect to the Mortgage Loans and administration of the Trust Fund.
So long as this Certificate is registered in the name of a Depository or
its nominee, the Securities Administrator shall make distributions on each
Distribution Date to the Holder of such Certificate as of the related Record
Date either (i) by wire transfer of immediately available funds to the account
of such Holder at a bank or other entity having appropriate facilities therefor,
if such Holder has so notified the Securities Administrator at least five
Business Days prior to the related Record Date or (ii) by check mailed by first
class mail to such Holder at the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Securities Administrator
specified in the final distribution notice to Certificateholders.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Master Servicer, the Securities Administrator and
the Seller, the Master Servicer, the Securities Administrator and the rights of
the Holders under the Pooling Agreement at any time by the Depositor, the
Trustee and the Seller, with the consent of the Holders of a Majority of
Interest of each Class of Certificates (and in certain circumstances a higher
percentage of such Voting Interests as specified in the Pooling Agreement). Any
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such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
The Pooling Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling Agreement, the Certificates of this
Class will be registered as one or more certificates held by the Depository or
its nominee and beneficial interests will be held by Beneficial Owners through
the book-entry facilities of the Depository or its nominee in minimum
denominations of $100,000 and integral multiples of $1 in excess thereof.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, at the option of the Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon the surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Securities Administrator and the
Trustee and any agent of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Master Servicer, the Securities Administrator, the Trustee nor
any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
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from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the majority holder of the Class I-C-1 or Class II-C
Certificates may make a Clean-up Call or cause a Clean-up Call to be made
pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling Agreement or be
valid for any purpose.
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
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IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: _____________ XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:___________________________
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [I] [II]-B [-] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
_______________________________,
AS SECURITIES ADMINISTRATOR
BY:_____________________________
AUTHORIZED OFFICER
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common NIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
A-2-6
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated: _________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
___________________________________________
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial bank
or trust company or by a member firm
of the New York Stock Exchange or another
national securities exchange. Notarized or
witnessed signatures are not acceptable.
A-1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to____________________________________________________________,
for the account of _________________________, account number _________________,
or, if mailed by check, to ____________________________. Applicable reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
Form of Class [I-C-1] [II-C] Certificate
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
THIS CLASS [I-C-1] [II-C] CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES
OF THIS SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AGREEMENT
REFERRED TO HEREIN.
THIS CLASS [I-C-1] [II-C] CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL
SUCH TIME AS DESCRIBED IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CLASS [I-C-1] [II-C] CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 9.02 OF THE POOLING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN
SECTION 3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA; OR A PLAN (AS
DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975 OF
THE CODE OR AN ENTITY (INCLUDING, WITHOUT LIMITATION, AN INSURANCE COMPANY
GENERAL ACCOUNT) THAT HOLDS ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN (OR
IS DEEMED TO HOLD THE ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT
TO 29 CFR SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF
SUCH EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN THE ENTITY OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) THAT IS SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO PROHIBITED TRANSACTION PROVISIONS OF
ERISA OR THE CODE OR THE FIDUCIARY PROVISIONS OF ERISA (EACH, A "PLAN") OR TO
ANY PERSON ACTING ON BEHALF OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE
REGISTERED EXCEPT AS PROVIDED IN THE POOLING AGREEMENT.
A-3-1
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [I-C-1] [II-C]
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR.
DATE OF POOLING AGREEMENT: CERTIFICATE PRINCIPAL BALANCE OF THE CLASS [I-C-1] [II-C]
AS OF JANUARY 1, 2007 CERTIFICATES AS OF THE CLOSING DATE:(1)
CLOSING DATE: JANUARY 25, 2007 MASTER SERVICER: XXXXX FARGO
BANK, N.A.
FIRST DISTRIBUTION DATE:
FEBRUARY 25, 2007 TRUSTEE: HSBC BANK USA, NATIONAL ASSOCIATION
PERCENTAGE INTEREST: 100% CUSIP NO.: [ - ]
NO. [-]
______________________
1 REFLECTS OVERCOLLATERALIZATION AMOUNT FOR GOUPR 1 OR GROUP II,
RESPECTIVELY.
A-3-2
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [I-C-1] [II-C]
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of two pools of mortgage loans (the "Mortgage Loans") formed and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE SELLER, THE TRUSTEE
OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of a Percentage Interest set forth above in that certain
beneficial ownership interest evidenced by all the Class [I-C-1] [II-C]
Certificates in the Trust Fund created pursuant to a Pooling Agreement, dated as
specified above (the "Pooling Agreement") by and among Xxxxx Asset
Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage Finance
Statutory Trust, as Seller (the "Seller"), HSBC Bank USA, National Association,
as trustee (the "Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling Agreement, to which Pooling Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Distributions of principal of and interest (based on a notional amount) on
this Certificate (including the final distribution on this Certificate) will be
made out of the Available Funds, to the extent and subject to the limitations
set forth in the Pooling Agreement, on the 25th day of each month commencing in
January 2007 or, if such 25th day is not a Business Day, the Business Day
immediately following (a "Distribution Date"), to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the calendar month immediately preceding such Distribution Date (the related
"Record Date"). All sums distributed on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
This Certificate is one of a duly authorized issue of Certificates
designated as Luminent Mortgage Trust 2007-1 Mortgage Pass-Through Certificates,
of the Series specified on the face hereof (herein called the "Certificates")
and representing the Percentage Interest specified on the face hereof.
Distributions allocated to the Class [I-C-1] [II-C] Certificates will be
allocated among the Certificates of such Class pro rata based upon their
A-3-3
respective Percentage Interests with a final distribution to be made upon
retirement of this Certificate as set forth in the Pooling Agreement.
The Class [I-C-1] [II-C] Certificates are limited in right of payment to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Pooling Agreement. As provided in the
Pooling Agreement, withdrawals from the Distribution Account, the Custodial
Account and related accounts shall be made from time to time for purposes other
than distributions to Holders, such purposes including reimbursement of fees and
expenses, including Advances made by the Servicer, and certain expenses and
indemnities amounts incurred with respect to the Mortgage Loans and
administration of the Trust Fund.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator and the rights of the Holders under the Pooling Agreement at any
time by the Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator, with the consent of the Holders of a Majority of
Interest of each Class of Certificates (and in certain circumstances a higher
percentage of such Voting Interests as specified in the Pooling Agreement). Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
The Pooling Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests specified in the
Pooling Agreement.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, at the option of the Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon the surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
A-3-4
No transfer of any Class [I-C-1] [II-C] Certificates shall be made unless
that transfer is made pursuant to an effective registration statement under the
Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification and in each case, in accordance with Section 9.02
of the Pooling Agreement. In the event that a transfer is to be made without
registration or qualification under the Act and applicable state securities
laws, the Securities Administrator shall not register such transfer unless and
until the prospective transferee provides the Securities Administrator with the
certifications and opinions required by Section 9.02 of the Pooling Agreement.
Any such Holder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Depositor, the Trustee, the Seller, the Master Servicer and
the Securities Administrator against any liability that may result if the
transfer is not exempt from registration under the Act and all applicable state
securities laws or is not made in accordance with such federal and state laws.
Further, except for certain transfers identified in Section 9.02 of the
Pooling Agreement, no transfer of a Class [I-C-1] [II-C] Certificate shall be
made unless and until the prospective transferee provides the Securities
Administrator with a properly executed and completed Benefit Plan Affidavit (or
an Opinion of Counsel, if required pursuant to the Benefit Plan Affidavit),
which Affidavit (or an Opinion of Counsel, if required) shall not be obtained at
the expense of the Trustee, the Depositor, the Underwriters, the Master
Servicer, the Servicer or the Securities Administrator. Notwithstanding anything
herein to the contrary, any purported transfer of this Certificate to or on
behalf of a Plan (as defined in the Benefit Plan Affidavit) or any person acting
on behalf of a Plan or investing assets of a Plan without delivery of an Opinion
of Counsel shall be null and void.
The Depositor, the Trustee, the Seller, the Master Servicer, the Securities
Administrator and the Originator and any agent of the Depositor or the Trustee
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the majority holder of the Class I-C-1 or Class II-C
Certificates may make a Clean-up Call or cause a Clean-up Call to be made
pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling Agreement or be
valid for any purpose.
A-3-5
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-3-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: __________ XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:_________________________________
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [I-C-1] [II-C] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:_______________________________
AUTHORIZED OFFICER
A-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
A-3-8
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated: _________________ ____________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
____________________________________________
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial bank
or trust company or by a member firm
of the New York Stock Exchange or another
national securities exchange. Notarized or
witnessed signatures are not acceptable.
A-3-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to_________________________
________________________________________, for the account of
_______________________________, account number __________________, or, if
mailed by check, to ____________________________. Applicable reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
X-0-00
Xxxxxxx X-0
Form of Class I-C-2 Certificate
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN UNDIVIDED
BENEFICIAL INTEREST IN THE ASSETS OF AN ARRANGEMENT THAT IS CLASSIFIED AS A
GRANTOR TRUST UNDER SUBPART E, PART I OF SUBCHAPTER J OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS I-C-2 CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN
SECTION 3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA; OR A PLAN (AS
DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975 OF
THE CODE OR AN ENTITY (INCLUDING, WITHOUT LIMITATION, AN INSURANCE COMPANY
GENERAL ACCOUNT) THAT HOLDS ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN (OR
IS DEEMED TO HOLD THE ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT
TO 29 CFR SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF
SUCH EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN THE ENTITY OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) THAT IS SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO PROHIBITED TRANSACTION PROVISIONS OF
ERISA OR THE CODE OR THE FIDUCIARY PROVISIONS OF ERISA (EACH, A "PLAN") OR TO
ANY PERSON ACTING ON BEHALF OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE
REGISTERED EXCEPT AS PROVIDED IN THE POOLING AGREEMENT.]
A-4-1
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS I-C-2
THIS CERTIFICATE IS NOT ENTITLED TO DISTRIBUTIONS OF PRINCIPAL.
DATE OF POOLING AGREEMENT: CERTIFICATE PRINCIPAL BALANCE OF THE
AS OF JANUARY 1, 2007 CLASS I-C-2 CERTIFICATES AS OF THE
CLOSING DATE: N/A
CLOSING DATE: JANUARY 25, 2007 MASTER SERVICER: XXXXX FARGO
BANK, N.A.
FIRST DISTRIBUTION DATE:
FEBRUARY 25, 2007 TRUSTEE: HSBC BANK USA, NATIONAL
ASSOCIATION
PERCENTAGE INTEREST: 100% CUSIP NO.: [ - ]
XX. 0
X-0-0
XXXXXXXX XXXXXXXX TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS I-C-2
evidencing an undivided beneficial interest in the assets of an arrangement that
is classified as a grantor trust created pursuant to the Pooling Agreement.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE SELLER, THE TRUSTEE,
THE SUPPLEMENTAL INTEREST TRUST TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of a 100% Percentage Interest set forth above in that
certain beneficial ownership interest evidenced by all the Class I-C-2
Certificates issued pursuant to a Pooling Agreement, dated as specified above
(the "Pooling Agreement") by and among Xxxxx Asset Securitization, Inc., as
depositor (the "Depositor"), Maia Mortgage Finance Statutory Trust, as Seller
(the "Seller"), HSBC Bank USA, National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and as
securities administrator (the "Securities Administrator"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling Agreement, to which Pooling
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Distributions with respect to this Certificate (including the final
distribution on this Certificate) will be made to the extent and subject to the
limitations set forth in the Pooling Agreement, on the 25th day of each month
commencing in January 2007 or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the calendar month immediately preceding such Distribution Date
(the related "Record Date"). All sums distributed on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Class I-C-2 Certificate represents an undivided beneficial ownership
interest in certain assets as provided in the Pooling Agreement.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
A-4-3
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator and the rights of the Holders under the Pooling Agreement at any
time by the Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator, with the consent of the Holders of a Majority of
Interest of each Class of Certificates (and in certain circumstances a higher
percentage of such Voting Interests as specified in the Pooling Agreement). Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
The Pooling Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests specified in the
Pooling Agreement.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, at the option of the Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon the surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
No transfer of any Class I-C-2 Certificates shall be made unless that
transfer is made pursuant to an effective registration statement under the Act
and effective registration or qualification under applicable state securities
laws, or is made in a transaction that does not require such registration or
qualification and in each case, in accordance with Section 9.02 of the Pooling
Agreement. In the event that a transfer is to be made without registration or
qualification under the Act and applicable state securities laws, the Securities
Administrator shall not register such transfer unless and until the prospective
transferee provides the Securities Administrator with the certifications and
opinions required by Section 9.02 of the Pooling Agreement. Any such Holder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator against any liability that may result if the transfer is not
A-4-4
exempt from registration under the Act and all applicable state securities laws
or is not made in accordance with such federal and state laws.
Further, except for certain transfers identified in Section 9.02 of the
Pooling Agreement, no transfer of a Class I-C-2 Certificate shall be made unless
and until the prospective transferee provides the Securities Administrator with
a properly executed and completed Benefit Plan Affidavit (or an Opinion of
Counsel, if required pursuant to the Benefit Plan Affidavit), which Affidavit
(or an Opinion of Counsel, if required) shall not be obtained at the expense of
the Trustee, the Depositor, the Underwriter, the Master Servicer, the Servicer
or the Securities Administrator. Notwithstanding anything herein to the
contrary, any purported transfer of a Class I-C-2 Certificate to or on behalf of
a Plan (as defined in the Benefit Plan Affidavit) or any person acting on behalf
of a Plan or investing assets of a Plan without delivery of an Opinion of
Counsel shall be null and void.
The Depositor, the Trustee, the Seller, the Master Servicer, the Securities
Administrator, the Supplemental Interest Trust Trustee and the Originator and
any agent of the Depositor or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Master Servicer, the Securities Administrator, the Trustee,
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the majority holder of the Class I-C-1 or Class II-C
Certificates may make a Clean-up Call or cause a Clean-up Call to be made
pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling Agreement or be
valid for any purpose.
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-4-5
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: __________ XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:_________________________________
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS I-C-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:_______________________________
AUTHORIZED OFFICER
A-4-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
A-4-7
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated: _________________ ____________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
____________________________________________
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial bank
or trust company or by a member firm
of the New York Stock Exchange or another
national securities exchange. Notarized or
witnessed signatures are not acceptable.
A-4-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to_________________________
________________________________________, for the account of
_______________________________, account number __________________, or, if
mailed by check, to ____________________________. Applicable reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
Form of Class [I] [II]-P Certificate
THIS CLASS [I] [II]-P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 9.02 OF THE POOLING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN
SECTION 3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA; OR A PLAN (AS
DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975 OF
THE CODE OR AN ENTITY (INCLUDING, WITHOUT LIMITATION, AN INSURANCE COMPANY
GENERAL ACCOUNT) THAT HOLDS ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN (OR
IS DEEMED TO HOLD THE ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT
TO 29 CFR SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF
SUCH EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN THE ENTITY OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) THAT IS SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO PROHIBITED TRANSACTION PROVISIONS OF
ERISA OR THE CODE OR THE FIDUCIARY PROVISIONS OF ERISA (EACH, A "PLAN") OR TO
ANY PERSON ACTING ON BEHALF OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE
REGISTERED EXCEPT AS PROVIDED IN THE POOLING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE WILL BE ENTITLED TO CERTAIN DISTRIBUTIONS AS
PROVIDED IN THE AGREEMENT.
A-5-1
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [I] [II]-P CERTIFICATE
THIS CLASS [I] [II]-P CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP INTEREST
IN THE TRUST FUND CREATED BY THE POOLING AGREEMENT.
DATE OF POOLING AGREEMENT: MASTER SERVICER: XXXXX FARGO
AS OF JANUARY 1, 2007 BANK, N.A.
CLOSING DATE: JANUARY 25, 2007 TRUSTEE: HSBC BANK USA, NATIONAL
ASSOCIATION
PERCENTAGE INTEREST: 100% PRINCIPAL AMOUNT: $100
NO. 1
A-5-2
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [I] [II]-P
evidencing the Percentage Interest in the distribution allocable to the
Certificates of the above-referenced Class with respect to the Trust Fund
consisting primarily of two pools of adjustable rate mortgage loans (the
"Mortgage Loans") formed and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE SELLER, THE TRUSTEE
OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of a Percentage Interest set forth above in that certain
beneficial ownership interest evidenced by all the Class [I] [II]-P Certificates
in the Trust Fund created pursuant to a Pooling Agreement, dated as specified
above (the "Pooling Agreement") by and among Xxxxx Asset Securitization, Inc.,
as depositor (the "Depositor"), Maia Mortgage Finance Statutory Trust, as Seller
(the "Seller"), HSBC Bank USA, National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and as
securities administrator (the "Securities Administrator"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling Agreement, to which Pooling
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Distributions of principal of this Certificate (including the final
distribution on this Certificate) will be made out of the Available Funds, to
the extent and subject to the limitations set forth in the Pooling Agreement, on
the 25th day of each month commencing in January 2007 or, if such 25th day is
not a Business Day, the Business Day immediately following (a "Distribution
Date"), to the Person in whose name this Certificate is registered at the close
of business on the last Business Day of the calendar month immediately preceding
such Distribution Date (the related "Record Date"). All sums distributed on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
This Certificate is one of a duly authorized issue of Certificates
designated as Luminent Mortgage Trust 2007-1 Mortgage Pass-Through Certificates,
of the Series specified on the face hereof (herein called the "Certificates")
and representing the Percentage Interest specified on the face hereof.
Distributions allocated to the Class [I] [II]-P Certificates will be allocated
among the Certificates of such Class pro rata based upon their respective
Percentage Interests with a final distribution to be made upon retirement of
this Certificate as set forth in the Pooling Agreement.
A-5-3
The Class [I] [II]-P Certificates are limited in right of payment to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Pooling Agreement. As provided in the
Pooling Agreement, withdrawals from the Distribution Account, the Custodial
Account and related accounts shall be made from time to time for purposes other
than distributions to Holders, such purposes including reimbursement of fees and
expenses, including Advances made by the Servicer, and certain expenses and
indemnities amounts incurred with respect to the Mortgage Loans and
administration of the Trust Fund.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator and the rights of the Holders under the Pooling Agreement at any
time by the Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator, with the consent of the Holders of a Majority of
Interest of each Class of Certificates (and in certain circumstances a higher
percentage of such Voting Interests as specified in the Pooling Agreement). Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
The Pooling Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests specified in the
Pooling Agreement.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, at the option of the Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon the surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
A-5-4
No transfer of any Class [I] [II]-P Certificates shall be made unless that
transfer is made pursuant to an effective registration statement under the Act
and effective registration or qualification under applicable state securities
laws, or is made in a transaction that does not require such registration or
qualification and in each case, in accordance with Section 9.02 of the Pooling
Agreement. In the event that a transfer is to be made without registration or
qualification under the Act and applicable state securities laws, the Securities
Administrator shall not register such transfer unless and until the prospective
transferee provides the Securities Administrator with the certifications and
opinions required by Section 9.02 of the Pooling Agreement. Any such Holder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator against any liability that may result if the transfer is not
exempt from registration under the Act and all applicable state securities laws
or is not made in accordance with such federal and state laws.
Further, except for certain transfers identified in Section 9.02 of the
Pooling Agreement, no transfer of a Class [I] [II]-P Certificate shall be made
unless and until the prospective transferee provides the Securities
Administrator with a properly executed and completed Benefit Plan Affidavit (or
an Opinion of Counsel, if required pursuant to the Benefit Plan Affidavit),
which Affidavit (or an Opinion of Counsel, if required) shall not be obtained at
the expense of the Trustee, the Depositor, the Underwriter, the Master Servicer,
the Servicer or the Securities Administrator. Notwithstanding anything herein to
the contrary, any purported transfer of a Class II-F Certificate to or on behalf
of a Plan (as defined in the Benefit Plan Affidavit) or any person acting on
behalf of a Plan or investing assets of a Plan without delivery of an Opinion of
Counsel shall be null and void.
The Depositor, the Trustee, the Seller, the Master Servicer, the Securities
Administrator and the Originator and any agent of the Depositor or the Trustee
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the majority holder of the Class I-C-1 or Class II-C
Certificates may make a Clean-up Call or cause a Clean-up Call to be made
pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling Agreement or be
valid for any purpose.
A-5-5
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-5-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: __________ XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:_________________________________
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [I] [II]-P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:_______________________________
AUTHORIZED OFFICER
A-5-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above
list.
A-5-8
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated: _________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial bank
or trust company or by a member firm
of the New York Stock Exchange or another
national securities exchange. Notarized or
witnessed signatures are not acceptable.
A-5-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to_________________________
________________________________________, for the account of
_______________________________, account number __________________, or, if
mailed by check, to ____________________________. Applicable reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
Form of Residual Certificate
THE CLASS [R] [RX] CERTIFICATES ARE SUBORDINATED TO THE OTHER CLASSES OF
THE CERTIFICATES ISSUED BY THE TRUST DESCRIBED HEREIN TO THE EXTENT DESCRIBED
HEREIN AND IN THE POOLING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS. THIS
CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER
SUCH LAWS OR QUALIFICATION FOR AN EXEMPTION FROM SUCH REGISTRATION. THE
SECURITIES ADMINISTRATOR SHALL REQUIRE A CERTIFICATE FROM ANY TRANSFEROR AND
TRANSFEREE HEREOF DEMONSTRATING COMPLIANCE WITH APPLICABLE SECURITIES LAWS AND,
UNDER CERTAIN CIRCUMSTANCES, THE SECURITIES ADMINISTRATOR MAY REQUIRE AN OPINION
OF COUNSEL WITH RESPECT TO SUCH REGISTRATION OR QUALIFICATION. ANY TRANSFEREE OF
THIS CERTIFICATE MUST DELIVER TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND
THE DEPOSITOR A RESIDUAL TRANSFEREE AGREEMENT CONTAINING CERTAIN REPRESENTATIONS
AND COVENANTS. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS [R] [RX]
CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES THE SECURITIES
ADMINISTRATOR WITH A RESIDUAL TRANSFEREE AGREEMENT CONTAINING CERTAIN
REPRESENTATIONS AND COVENANTS, AN AFFIDAVIT RELATING TO VARIOUS TAX MATTERS, AND
AN AFFIDAVIT RELATING TO VARIOUS ERISA MATTERS AS DEFINED BELOW, ALL AS
DESCRIBED IN THE POOLING AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF A CLASS
[R] [RX] CERTIFICATE SHALL BE PERMITTED TO BE MADE TO A DISQUALIFIED
ORGANIZATION, WHICH GENERALLY INCLUDES ANY ENTITY THAT WOULD BE EXEMPT FROM
FEDERAL INCOME TAXATION (INCLUDING THE TAX ON UNRELATED BUSINESS TAXABLE INCOME)
ON INCOME DERIVED FROM THIS CLASS [R] [RX] CERTIFICATE. RESTRICTIONS ON TRANSFER
OF THIS CERTIFICATE ARE DESCRIBED MORE FULLY HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN
SECTION 3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA; OR A PLAN (AS
DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975 OF
THE CODE OR AN ENTITY (INCLUDING, WITHOUT LIMITATION, AN INSURANCE COMPANY
A-7-1
GENERAL ACCOUNT) THAT HOLDS ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN (OR
IS DEEMED TO HOLD THE ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT
TO 29 CFR SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF
SUCH EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN THE ENTITY OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) THAT IS SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO PROHIBITED TRANSACTION PROVISIONS OF
ERISA OR THE CODE OR THE FIDUCIARY PROVISIONS OF ERISA (EACH, A "PLAN") OR TO
ANY PERSON ACTING ON BEHALF OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE
REGISTERED.
THE HOLDER OF THIS CLASS [R] [RX] CERTIFICATE IS NOT ENTITLED TO SCHEDULED
DISTRIBUTIONS OF INTEREST.
A-7-2
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [R] [RX] CERTIFICATE
THIS CLASS [R] [RX] CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP OF A REMIC
RESIDUAL INTEREST IN MULTIPLE REMICS UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
DATE OF POOLING AGREEMENT: MASTER SERVICER: XXXXX FARGO
AS OF JANUARY 1, 2007 BANK, N.A.
CLOSING DATE: JANUARY 25, 2007 TRUSTEE: HSBC BANK USA, NATIONAL
ASSOCIATION
PERCENTAGE INTEREST: 100%
NO. 1
A-7-3
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [R] [RX] CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund that consists
primarily of two pools of Mortgage Loans (the "Mortgage Loans") formed and sold
by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE SELLER, THE TRUSTEE
OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY ANY
PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class [R] [RX] Certificates issued by Luminent Mortgage Trust 0000-0 (xxx
"Xxxxx Xxxx"), which was created pursuant to a Pooling Agreement, dated as of
January 1, 2007 (the "Pooling Agreement") by and among Xxxxx Asset
Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage Finance
Statutory Trust, as seller (the "Seller"), HSBC Bank USA, National Association,
as trustee (the "Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned to them in the Pooling Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling Agreement, to which Pooling Agreement the Holder of
this Certificate, by virtue of the acceptance hereof, assents and by which such
Holder is bound.
The Holder of this Certificate will not be entitled to any scheduled
distributions of interest. Distributions on this Certificate, if any (including
the final distribution on this Certificate), will be made on the 25th day of
each month commencing in January 2007 or, if such 25th day is not a Business
Day, the Business Day immediately following (a "Distribution Date"), to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the calendar month preceding such Distribution Date
(the related "Record Date"). All sums distributed on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
Distributions, if any, will be made to the Holders of the Class [R] [RX]
Certificates as described in the Pooling Agreement. Distributions allocated to
the Class [R] [RX] Certificates will be allocated among the Certificates of such
Class pro rata based upon their respective Percentage Interests, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling Agreement.
A-7-4
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1 (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof.
The Class [R] [RX] Certificates are sometimes referred to as the "Residual
Certificates." The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
The Class [R] [RX] Certificates will be subordinated to the Certificates of
all other Classes (other than the Class RX Certificates) to the extent provided
in the Pooling Agreement.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling Agreement. As provided in the Pooling Agreement, withdrawals from
the Distribution Account, the Custodial Account and related accounts shall be
made from time to time for purposes other than distributions to Holders, such
purposes including reimbursement of fees and expenses, including Advances made
by the Servicer, and certain expenses and indemnities amounts incurred with
respect to the Mortgage Loans and administration of the Trust Fund.
An election will be made to treat certain of the assets assigned to the
Trust Fund as multiple separate real estate mortgage investment conduits
("REMICs") under the Internal Revenue Code of 1986, as amended (the "Code").
Assuming that the elections are made properly and that certain qualification
requirements concerning the Mortgage Loans and the Certificates are met, the
Holder of this Certificate will be treated for federal income tax purposes as
the beneficial owner of a "residual interest" in each of the related REMICs, as
described in the Pooling Agreement. Accordingly, the Holder of this Class [R]
[RX] Certificate will be taxed on its pro rata share of each such REMIC's
taxable income or net loss. The requirement that the Holder of this Class [R]
[RX] Certificate report its pro rata share of such income or loss will continue
until there are no Certificates of any Class outstanding.
By accepting this Certificate, the Holder of this Certificate agrees to be
bound by all of the provisions of the Pooling Agreement, and, in particular,
agrees that it shall (i) take any action required by the Code or Treasury
regulations thereunder in order to create or maintain the REMIC status of each
REMIC and (ii) refrain from taking any action that could endanger such status.
The Pooling Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator and the rights of the Holders under the Pooling Agreement at any
time by the Depositor, the Trustee, the Seller, the Master Servicer and the
Securities Administrator, with the consent of the Holders of Certificates
evidencing at least a majority of the Voting Interests of each Class affected by
the proposed amendment (and in certain circumstances a higher percentage of such
Voting Interests as specified in the Pooling Agreement). Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer or exchange hereof or in lieu herefor, regardless of whether
notation of such consent is made upon this Certificate. The Pooling Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
A-7-5
As provided in the Pooling Agreement and subject to any limitations on
transfer of this Certificate by the Depository or its nominee and certain
limitations set forth in the Pooling Agreement, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the applicable Corporate Trust Office of the
Securities Administrator or such other offices or agencies appointed by the
Securities Administrator for that purpose or such other locations, if any,
provided in the Pooling Agreement, duly endorsed by, or accompanied by an
assignment in the form attached hereto or other written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations will be
issued to the designated transferee or transferees.
The Certificates of this Class are issuable in fully-registered,
certificated form without coupons in minimum Percentage Interests of 10% and
integral multiples thereof.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class in authorized denominations as requested by the Holder surrendering
the same. No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
No transfer of any Class [R] [RX] Certificates shall be made unless that
transfer is made pursuant to an effective registration statement under the Act
and effective registration or qualification under applicable state securities
laws, or is made in a transaction that does not require such registration or
qualification and in each case, in accordance with Section 9.02 of the Pooling
Agreement. In the event that a transfer is to be made without registration or
qualification under the Act and applicable state securities laws, the Securities
Administrator shall not register such transfer unless and until the prospective
transferee provides the Securities Administrator with the certifications and
opinions required by Section 9.02 of the Pooling Agreement. Any such Holder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Depositor, the Trustee, the Seller, the Master Servicer and the Securities
Administrator against any liability that may result if the transfer is not
exempt from registration under the Act and all applicable state securities laws
or is not made in accordance with such federal and state laws.
Further, no transfer of a Class [R] [RX] Certificate shall be made unless
and until the prospective transferee provides the Securities Administrator with
a properly executed and completed Benefit Plan Affidavit in accordance with
Section 9.02(c) of the Pooling Agreement.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
for all purposes to have consented to the provisions of Section 9.02(f) of the
Pooling Agreement, including the requirement that any transferee of this
Certificate provide a properly executed affidavit substantially in the form of
Exhibit H to the Pooling Agreement.
A-7-6
If a tax or a reporting cost is borne by any REMIC as a result of the
transfer of a Class [R] [RX] Certificate (or any beneficial interest therein) in
violation of the restrictions set forth herein and in the Pooling Agreement, the
Securities Administrator shall pay such tax or reporting cost with amounts that
otherwise would have been paid to the transferee of the Class [R] [RX]
Certificate (or beneficial interest therein). In that event, neither the
transferee nor the transferor shall have any right to seek repayment of such
amounts from the Depositor, the Trustee, the Master Servicer, the Securities
Administrator, any REMIC or any other Holders, and none of such parties shall
have any liability for payment of any such tax or reporting cost.
The Depositor, the Master Servicer, the Securities Administrator and the
Trustee and any agent of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee nor
any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the Trust Fund created
thereby shall terminate upon the earlier of (a) the purchase by the Servicer of
all Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
the terms and conditions of the Pooling Agreement and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts to be distributed to them. In no event shall
the Trust Fund continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of the St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. Pursuant to the terms of
the Pooling Agreement, the majority holder of the Class I-C-1 or Class II-C
Certificates may make a Clean-up Call or cause a Clean-up Call to be made
pursuant to Section 11.01 of the Pooling Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual signature, this Certificate shall not
represent entitlement to any benefit under the Pooling Agreement or be valid for
any purpose.
THIS CERTIFICATE AND THE POOLING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
This Class [R] [RX] Certificate is a security governed by Article 8 of the
Uniform Commercial Code.
The Securities Administrator has executed this Certificate on behalf of the
Trust Fund not in its individual capacity but solely as Securities Administrator
under the Pooling Agreement.
A-7-7
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ____________ XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:_______________________________
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [R] [RX] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AGREEMENT.
XXXXX FARGO BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:________________________________
AUTHORIZED OFFICER
A-7-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above
list.
A-7-9
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust Fund, with full power of substitution in the
premises.
Dated: _________________ ____________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
__________________________________________
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial bank
or trust company or by a member firm
of the New York Stock Exchange or another
national securities exchange. Notarized or
witnessed signatures are not acceptable.
A-7-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds, to_________________________________
__________________________________, for the account of
_______________________________, account number __________________, or, if
mailed by check, to ____________________________. Applicable reports and
statements should be mailed to ____________________________________________.
This information is provided by
____________________________________________________, the assignee named above,
or ___________________________________________________, as its agent
EXHIBIT B
INFORMATION FIELDS FOR MORTGAGE LOAN SCHEDULE
With respect to each Mortgage Loan:
1. the Loan identification number;
2. the applicable Cut-off Date;
3. the zip code of the Mortgaged Property;
4. the applicable Servicer;
5. a code indicating whether the Mortgaged Property is a single family
residence, two-family residence, three to four family residence, planned unit
development, condominium, townhouse, row home or manufactured home;
6. the current Mortgage Rate;
7. the current Scheduled Monthly Payment;
8. the original term to maturity;
9. the scheduled maturity date;
10. the scheduled principal balance of the Mortgage Loan as of the Cut-off
Date;
11. the original Loan-to-Value Ratio;
12. the FICO score of the Mortgagor at the time of origination;
13. a code indicating the credit grade of each Mortgage Loan as assigned by
the Originator;
14. the date on which the first Scheduled Monthly Payment was or will be
due;
15. the date on which the next payment is due;
16. xxx xxxxxxxxxxxxx xxxxx (xxxx, xxxxxx, XXX);
17. loan purpose (i.e., purchase, rate/term refinance, cash-out refinance);
18. a code indicating whether the Mortgaged Property is owner occupied or
non-owner occupied;
19. a code indicating the product type (e.g., 2/28, 3/27, 15 year fixed,
etc.);
B-1
20. a code indicating whether the Mortgage Loan is subject to a Prepayment
Premium;
21. the term of any Prepayment Premium;
22. the type and amount of any Prepayment Premium;
23. with respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
24. with respect to each Adjustable Rate Mortgage Loan, the next Adjustment
Date;
25. with respect to each Adjustable Rate Mortgage Loan, the lifetime
maximum Mortgage Interest Rate;
26. with respect to each Adjustable Rate Mortgage Loan, the lifetime
minimum Mortgage Interest Rate;
27. with respect to each Adjustable Rate Mortgage Loan, the periodic
Payment Cap;
28. with respect to each Adjustable Rate Mortgage Loan, the Index;
29. a code indicating whether the Mortgage Loan is an adjustable rate or
fixed rate mortgage loan;
30. a code indicating whether the Mortgage Loan is a negatively amortizing
loan;
31. a code indicating the payment reset provisions;
32. a code indicating whether the Mortgage Loan is a balloon loan;
33. a code indicating whether the Mortgage Loan is a "high cost" (or
similarly classified) loan under applicable federal, state and local laws;
34. a code indicating whether the Mortgage Loan has a Lender Paid Mortgage
Insurance Policy, and if so, the applicable fee rate; and
35. a code indicating whether the Mortgage Loan is covered by a Triad
Policy.
With respect to the Mortgage Loans in the aggregate in the related Mortgage
Loan Package, the respective Mortgage Loan Schedule shall set forth the
following information, as of the Cut-off Date:
1. the number of Mortgage Loans;
2. the current aggregate outstanding scheduled principal balance of the
Mortgage Loans;
3. the current weighted average Mortgage Interest Rate of the Mortgage
Loans; and
A-1-2
4. the weighted average months to maturity of the Mortgage Loans.
A-1-3
EXHIBIT C
CONTENTS OF MORTGAGE LOAN FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items delivered to the Trustee (or its designee), portions of
which may be held by the Servicer in the Servicing File:
(i) The original Mortgage Note (with all riders) endorsed either in
blank or in the following form: "Pay to the order of HSBC Bank USA,
National Association, as trustee (the "Trustee") for the Luminent Mortgage
Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1, without
recourse" and signed in the name of the Seller by an Authorized Officer
(provided, in the event that the Mortgage Loan was acquired by the Seller
in a merger, the signature must be in the following form: "[Seller],
successor by merger to [name of predecessor]"; and in the event that the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the signature must be in the following form: "[Seller],
formerly known as [previous name]"). The Mortgage Note must contain all
necessary intervening endorsements showing a complete chain of endorsement
from the Originator (each such endorsement being sufficient to transfer all
right, title and interest of the party so endorsing, as the holder of the
Mortgage Note or assignee thereof, in and to that Mortgage Note); or
With respect to no more than 1% of the Cut-off Date Balance, a
certified copy of the Mortgage Note (endorsed as provided above) together
with a lost note affidavit, providing indemnification to the holder thereof
for any losses incurred due to the fact that the original Mortgage Note is
missing.
(ii) The original of any guarantee executed in connection with the
Mortgage Note (if any).
(iii) The original Mortgage (with all riders), with evidence of
recording thereon, except as follows: If in connection with any Mortgage
Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the
Trustee, a photocopy of such Mortgage, together with, in the case of a
delay caused by the public recording office, an Officer's Certificate of
the Seller stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Trustee upon receipt thereof by
the Seller.
(iv) The originals or certified true copies of any document sent for
recordation of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, or, if the original of any
such agreement with evidence of recording thereon has not been returned by
C-1
the public recording office where such agreement has been delivered for
recordation or such agreement has been lost or such public recording office
retains the original recorded agreement, a photocopy of such agreement,
certified by the Seller or its agent to be a true and correct copy of the
agreement delivered to the appropriate public recording office for
recordation. The original recorded agreement or, in the case of a agreement
where a public recording office retains the original recorded agreement or
in the case where an agreement is lost after recordation in a public
recording office, a copy of such agreement certified by such public
recording office to be a true and complete copy of the original recorded
agreement, will be promptly delivered to the Trustee upon receipt thereof
by the Seller.
(v) The original Assignment of Mortgage in blank for each Mortgage
Loan, in form and substance acceptable for recording. If the Mortgage Loan
was acquired by the Seller in a merger, the Assignment of Mortgage must be
made by "[Seller], successor by merger to [name of predecessor]." If the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment of Mortgage must be made by "[Seller],
formerly know as [previous name]." Subject to the foregoing and where
permitted under the applicable laws of the jurisdiction wherein the
Mortgaged property is located, such Assignments of Mortgage may be made by
blanket assignments for Mortgage Loans secured by the Mortgaged Properties
located in the same county. If the related Mortgage has been recorded in
the name of MERS or its designee, no Assignment of Mortgage will be
required to be prepared or delivered and instead, the Seller shall take all
actions as are necessary to cause the Trustee to be shown as the owner of
the related Mortgage Loan on the records of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by
MERS.
(vi) For any Mortgage Loan not recorded in the name of MERS, originals
or certified true copies of documents sent for recordation of all
Intervening Assignments of the Mortgage with evidence of recording thereon,
or if any such Intervening Assignment has not been returned from the
applicable recording office or has been lost or if such public recording
office retains the original recorded assignments of mortgage, the Seller
shall deliver or cause to be delivered to the Trustee, a photocopy of such
Intervening Assignment, together with (i) in the case of a delay caused by
the public recording office, an Officer's Certificate of the Seller stating
that such Intervening Assignment of Mortgage has been dispatched to the
appropriate public recording office for recordation and that such original
recorded Intervening Assignment of Mortgage or a copy of such Intervening
Assignment of Mortgage certified by the appropriate public recording office
or by the title insurance company that issued the title policy to be a true
and complete copy of the original recorded Intervening Assignment of
Mortgage will be promptly delivered to the Trustee upon receipt thereof by
the Seller; or (ii) in the case of an Intervening Assignment where a public
recording office retains the original recorded Intervening Assignment of
Mortgage or in the case where an Intervening Assignment of Mortgage is lost
after recordation in a public recording office, a copy of such Intervening
Assignment of Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Intervening Assignment of
Mortgage.
C-2
(vii) The original private mortgage insurance policy or certificate of
insurance, where required pursuant to the Agreement.
(viii) The original mortgagee policy of title insurance in the form
required by the Agreement or, if the original lender's title insurance
policy has not been issued, the preliminary report or irrevocable binder or
commitment to issue the same.
(ix) Any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage.
(x) For each Mortgage Loan which is secured by a residential long-term
lease, if any, a copy of the lease with evidence of recording indicated
thereon, or, if the lease is in the process of being recorded, a photocopy
of the lease, certified by an officer of the respective prior owner of such
Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to be a true
and correct copy of the lease transmitted for recordation.
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items to the extent required in the Underwriting Guidelines:
(i) The original hazard insurance policy and, if required by law,
flood insurance policy.
(ii) Fully executed residential loan application.
(iii) Fully executed Mortgage Loan closing statement (i.e., a Form
HUD-1) and any other truth-in-lending or real estate settlement procedure
forms required by law.
(iv) Verification of employment and income (if required pursuant to
the Underwriting Guidelines).
(v) Verification of acceptable evidence of source and amount of down
payment.
(vi) Credit report on the Mortgagor.
(vii) Residential appraisal report.
(viii) Photograph of the Mortgaged Property.
(ix) Survey of the Mortgaged Property, if required by the title
company or applicable law.
(x) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy
(i.e., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.).
C-3
(xi) All fully executed required disclosure statements required by
state and federal law.
(xii) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(xiii) Sales contract, if applicable.
(xiv) Evidence of payment of taxes and insurance premiums, insurance
claim files, correspondence, current and historical computerized data
files, and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage file and which are
required to document the Mortgage Loan or to service the Mortgage Loan.
(xv) Amortization schedule, if available.
(xvi) Payment history for any Mortgage Loan that has been closed for
more than 90 days.
(xvii) Fully executed power of attorney, if applicable.
In the event of a delay by the public recording office in returning any recorded
document, the Seller shall deliver to the Custodian, within 180 days of the
Closing Date, an Officer's Certificate which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay caused by the public recording office, (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, and (iv) specify the
date the applicable recorded document will be delivered to the Custodian. The
Seller shall be required to deliver to the Custodian the applicable recorded
document by the date specified in (iv) above.
C-4
EXHIBIT D
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
Xxxxx Fargo Bank, N.A.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Mortgage Document Custody
In connection with the administration of the mortgages held by you as Custodian
under that certain Custodial Agreement, dated as of January 1, 2007 (the
"Custodial Agreement"), among Xxxxx Fargo Bank, N.A., as custodian (the
"Custodian"), Xxxxx Asset Securitization, Inc., as Depositor (the "Depositor"),
and HSBC Bank USA, National Association, as the trustee (the "Trustee"), the
[Master Servicer] [Servicer] hereby requests a release of the Mortgage File held
by you as Custodian with respect to the following described Mortgage Loan for
the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. The [Master Servicer] [Servicer] hereby certifies
that all amounts received in connection with the loan have been credited to the
[Custodial Account] [Distribution Account] pursuant to the Pooling Agreement.
2. Mortgage Loan foreclosed. The [Master Servicer] [Servicer] hereby certifies
that the above reference Mortgage Loan is or will be subject to a foreclosure
proceeding in accordance with the Pooling Agreement.
3. Mortgage Loan substituted. The [Master Servicer] [Servicer] hereby certifies
that a Qualified Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Pooling Agreement.
4. Mortgage Loan repurchased. The [Master Servicer] [Servicer] hereby certifies
that the Repurchase Amount has been credited to the Distribution Account
pursuant to the Pooling Agreement.
5. Other. [ - ]
The undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Pooling Agreement and will
be returned to you within ten days of our receipt of such Mortgage File, except
if the Mortgage Loan has been paid in full, repurchased or substituted for a
Qualified Substitute Mortgage Loan (in which case the Mortgage File will be
D-1
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required by us
for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them in the
Custodial Agreement.
[ - ],
as [Master Servicer] [Servicer]
By: _________________________________
Name:
Title:
D-2
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE
___________________________
Date
Re: LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-1
CLASS [ - ] CERTIFICATES
Ladies and Gentlemen:
In connection with our disposition of the Luminent Mortgage Trust 2007-1
Mortgage Pass-Through Certificates, Series 2007-1 (the "Certificates"), we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act, (c)
to the extent we are disposing of the Class [ - ] Certificate, we have no
knowledge the Transferee is not a Permitted Transferee and (d) no purpose of the
proposed disposition of the Class [ - ] Certificate is to impede the assessment
or collection of tax.
Very truly yours,
[ - ]
By: _______________________________
Name:
Title:
E-1
EXHIBIT F-1
FORM OF NON-RULE 144A INVESTMENT LETTER
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [ ]
____________________
(DATE)
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the captioned
securities (the "Purchased Securities"), the undersigned (the "Transferee")
hereby certifies and covenants to the transferor, the Depositor, the Master
Servicer, the Securities Administrator, the Trustee and the Trust Fund as
follows:
(a) Representations and Warranties. The Transferee represents and warrants:
(1) The Transferee is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which the Transferee is organized, is
authorized to invest in the Purchased Securities and to enter into this
Agreement, and has duly executed and delivered this Agreement.
(2) The Transferee is acquiring the Purchased Securities for its own
account as principal and not with a view to the distribution of the Purchased
Securities, in whole or in part, in violation of Section 5 of the Securities Act
of 1933, as amended (the "Act").
(3) The Transferee is an "Accredited Investor" as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Act.
(4) The Transferee has knowledge in financial and business matters and is
capable of evaluating the merits and risks of an investment in the Purchased
Securities; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risk of an investment in the Purchased
Securities and can afford a complete loss of such investment;
(5) The Transferee confirms that the Depositor has made available to the
Transferee the opportunity to ask questions of, and receive answers from, the
Depositor concerning the Depositor, the Trust Fund, the purchase by the
Transferee of the Purchased Securities and all matters relating thereto, and to
F-1
obtain additional information relating thereto that the Depositor possesses or
can acquire without unreasonable effort or expense.
(b) Covenants. The Transferee covenants:
(1) The Transferee will not make a public offering of the Purchased
Securities, and will not reoffer or resell the Purchased Securities in a manner
that would render the issuance and sale of the Purchased Securities, whether
considered together with the resale or otherwise, a violation of the Act, or any
state securities or "Blue Sky" laws or require registration pursuant thereto;
(2) The Transferee agrees that, in its capacity as holder of the Purchased
Securities, it will assert no claim or interest in the Mortgage Loans by reason
of owning the Purchased Securities other than with respect to amounts that may
be properly and actually payable to the Transferee pursuant to the terms of the
Pooling Agreement and the securities; and
(3) If applicable, the Transferee will comply in all material respects with
respect to the Purchased Securities with applicable regulatory guidelines
relating to the ownership of mortgage derivative products.
(c) Transfer Restrictions.
(1) The Transferee understands that the Purchased Securities have not been
registered under the Act or registered or qualified under any state securities
laws and that no transfer may be made unless the Purchased Securities are
registered under the Act and under applicable state law or unless an exemption
from such registration is available. If so requested by the Trustee, the
Transferee and the transferor shall certify to the Depositor and the Trustee as
to the factual basis for the registration or qualification exemption relied
upon. The Transferee further understands that neither the Depositor, the Trustee
nor the Trust Fund is under any obligation to register the Purchased Securities
or make an exemption from such registration available.
(2) Any Securityholder desiring to effect a transfer shall, and does hereby
agree to, indemnify the Depositor and the Trustee against any liability that may
result if the transfer is not exempt under federal or applicable state
securities laws.
(3) The transfer of the Securities may be subject to additional
restrictions, as set forth in Section 9.02 of the Pooling Agreement.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling Agreement, dated as of
January 1, 2007, by and among Xxxxx Asset Securitization, Inc., as Depositor,
Maia Mortgage Finance Statutory Trust, as Seller, HSBC Bank USA, National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator"), pursuant to which the Purchased Securities were issued.
IN WITNESS WHEREOF, the undersigned has caused this Investment Letter to be
executed by its duly authorized representative as of the day and year first
above written.
F-2
[TRANSFEREE]
By: ______________________________________
Name:
Title:
F-3
EXHIBIT F-2
FORM OF RULE 144A INVESTMENT LETTER
LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
CLASS [ ]
_________________
(DATE)
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the captioned
securities (the "Purchased Certificates"), the undersigned (the "Transferee")
hereby certifies and covenants to the transferor, Xxxxx Asset Securitization,
Inc., the Master Servicer, the Securities Administrator, the Trustee and the
Trust Fund as follows:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act") and has completed the form of certification to that
effect attached hereto as Annex A1 (if the Transferee is not a registered
investment company) or Annex A2 (if the Transferee is a registered investment
company). The Transferee is aware that the sale to it is being made in reliance
on Rule 144A.
2. The Transferee understands that the Purchased Certificates have not been
registered under the 1933 Act or registered or qualified under any state
securities laws and that no transfer may be made unless the Purchased
Certificates are registered under the 1933 Act and under applicable state law or
unless an exemption from such registration is available. The Transferee further
understands that neither Xxxxx Asset Securitization, Inc., the Master Servicer,
the Securities Administrator, the Trustee nor the Trust Fund is under any
obligation to register the Purchased Certificates or make an exemption from such
registration available.
3. The Transferee is acquiring the Purchased Certificates for its own
account or for the account of a "qualified institutional buyer" (as defined in
Rule 144A, a "QIB"), and understands that such Purchased Certificates may be
resold, pledged or transferred only (a) to a person reasonably believed to be
such a QIB that purchases for its own account or for the account of a QIB to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from registration
under the 1933 Act and under applicable state securities laws. In addition, such
transfer may be subject to additional restrictions, as set forth in Section 9.02
of the Pooling Agreement. By its execution of this agreement, the Transferee
agrees that it will not resell, pledge or transfer any of the Purchased
Certificates to anyone otherwise than in strict compliance with Rule 144A, or
F-2-1
pursuant to another exemption from registration under the 1933 Act and all
applicable state securities laws, and in strict compliance with the transfer
restrictions set forth in Section 9.02 of the Pooling Agreement. The Transferee
will not attempt to transfer any or all of the Purchased Certificates pursuant
to Rule 144A unless the Transferee offers and sells such Certificates only to
QIBs or to offerees or purchasers that the Transferee and any person acting on
behalf of the Transferee reasonably believe (as described in paragraph (d)(l) of
Rule 144A) is a QIB.
4. The Transferee has been furnished with all information that it requested
regarding (a) the Purchased Certificates and distributions thereon and (b) the
Pooling Agreement referred to below.
5. If applicable, the Transferee has complied, will comply in all material
respects with applicable regulatory guidelines relating to the ownership of
mortgage derivative products.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling Agreement, dated as of
January 1, 2007, by and among Xxxxx Asset Securitization, Inc., as Depositor,
Maia Mortgage Finance Statutory Trust, as Seller, HSBC Bank USA, National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator") pursuant to which the Purchased Certificates were issued.
IN WITNESS WHEREOF, the undersigned has caused this Rule 144A Letter to be
executed by its duly authorized representative as of the day and year first
above written.
[TRANSFEREE]
By: ________________________________
Name:
Title:
F-2-2
Annex A1 to Exhibit F-2
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Transferee.
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because (a) the Transferee owned and/or invested on
a discretionary basis at least $[ - ] in securities [Note to reviewer - the
amount in the previous blank must be at least $100,000,000 unless the Transferee
is a dealer, in which case the amount filled in the previous blank must be at
least $10,000,000.] (except for the excluded securities referred to in paragraph
3 below) as of [ - ] [specify a date on or since the end of the Transferee's
most recently ended fiscal year] (such amount being calculated in accordance
with Rule 144A) and (b) the Transferee meets the criteria listed in the category
marked below.
_____ Corporation, etc. The Transferee is an organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, a corporation
(other than a bank as defined in Section 3(a)(2) of the 1933 Act or a
savings and loan association or other similar institution referenced in
Section 3(a)(5)(A) of the Act), a partnership, or a Massachusetts or
similar business trust.
_____ Bank. The Transferee (a) is a national bank or banking institution as
defined in Section 3(a)(2) of the 1933 Act and is organized under the laws
of a state, territory or the District of Columbia. The business of the
Transferee is substantially confined to banking and is supervised by the
appropriate state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements as of a date not more than 16 months preceding the
date of this certification in the case of a U.S. bank, and not more than
eighteen months preceding the date of this certification in the case of a
foreign bank or equivalent institution, a copy of which financial
statements is attached hereto.
_____ Savings and Loan. The Transferee is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution referenced in Section 3(a)(5)(A) of the 1933 Act. The
Transferee is supervised and examined by a state or federal authority
having supervisory authority over any such institutions or is a foreign
savings and loan association or equivalent institution and has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements as of a date not more than 16 months preceding the
date of this certification in the case of a U.S. savings and loan
association or similar institution, and not more than eighteen months
preceding the date of this certification in the case of a foreign savings
and loan association or equivalent institution, a copy of which financial
statements is attached hereto.
F-2-3
_____ Broker-dealer. The Transferee is a dealer registered pursuant to Section
15 of the Certificates Exchange Act of 1934, as amended (the "1934 Act").
_____ Insurance Company. The Transferee is an insurance company as defined in
Section 2(13) of the 1933 Act, whose primary and predominant business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a state,
territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and maintained
by a state, its political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, for the benefit of its
employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Certificate Act of 1974, as
amended.
_____ Investment Adviser. The Transferee is an investment adviser registered
under the Investment Advisers Act of 1940, as amended.
_____ Other. The Transferee qualifies as a "qualified institutional buyer" as
defined in Rule 144A on the basis of facts other than those listed in any
of the entries above. If this response is marked, the Transferee must
certify on additional pages, to be attached to this certification, to
facts that satisfy the Servicer that the Transferee is a "qualified
institutional buyer" as defined in Rule 144A.
3. The term "securities" as used herein does not include (a) securities of
issuers that are affiliated with the Transferee, (b) securities constituting the
whole or part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (c) bank deposit notes and certificates of deposit,
(d) loan participations, (e) repurchase agreements, (f) securities owned but
subject to a repurchase agreement and (g) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee and did not include any of the
securities referred to in the preceding paragraph. Further, in determining such
aggregate amount, the Transferee may have included securities owned by
subsidiaries of the Transferee, but only if such subsidiaries are consolidated
with the Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a reporting
company under the 1934 Act.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Purchased
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be made in reliance on Rule
144A.
F-2-4
6. Will the Transferee be purchasing _____ _____ the Purchased Certificates
only YES NO for the Transferee's own account?
If the answer to the foregoing question is "NO", the Transferee agrees
that, in connection with any purchase of securities sold to the Transferee for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Transferee will only purchase for the account of a third party
that at the time is a "qualified institutional buyer" within the meaning of Rule
144A. In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently meets
the definition of "qualified institutional buyer" set forth in Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Purchased
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized representative this ____ day of ___________,
______.
Print Name of Transferee
By: ___________________________
F-2-5
Annex A2 to Exhibit F-2
REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the entity purchasing the Purchased
Certificates (the "Transferee") or, if the Transferee is part of a Family of
Investment Companies (as defined in paragraph 3 below), is an officer of the
related investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because (a) the Transferee is an investment company
(a "Registered Investment Company") registered under the Investment Company Act
of 1940, as amended (the "1940 Act") and (b) as marked below, the Transferee
alone, or the Transferee's Family of Investment Companies, owned at least $[ - ]
[Note to reviewer - the amount in the previous blank must be at least
$100,000,000] in securities (other than the excluded securities referred to in
paragraph 4 below) as of [ - ] [specify a date on or since the end of the
Transferee's most recently ended fiscal year]. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities to the Transferee or the
Transferee's Family of Investment Companies was used.
_____ The Transferee owned $____________ in securities (other than the excluded
securities referred to in paragraph 4 below) as of the end of the
Transferee's most recent fiscal year(such amount being calculated in
accordance with Rule 144A).
_____ The Transferee is part of a Family of Investment Companies which owned in
the aggregate $____________ in securities (other than the excluded
securities referred to in paragraph 4 below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more Registered Investment Companies except for a unit investment trust whose
assets consist solely of shares of one or more Registered Investment Companies
(provided that each series of a "series company," as defined in Rule 18f-2 under
the 1940 Act, shall be deemed to be a separate investment company) that have the
same investment adviser (or, in the case of a unit investment trust, the same
depositor) or investment advisers (or depositors) that are affiliated (by virtue
of being majority-owned subsidiaries of the same parent or because one
investment adviser is a majority-owned subsidiary of the other).
4. The term "securities" as used herein does not include (a) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (b) bank deposit notes and certificates of
deposit, (c) loan participations, (d) repurchase agreements, (e) securities
owned but subject to a repurchase agreement and (f) currency, interest rate and
commodity swaps.
F-2-6
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Purchased Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized representative this ____ of ____________,
______.
[Print Name of Transferee or Adviser]
By:
__________________________________
Name:
Title:
IF AN ADVISER:
[Print Name of Transferee]
Date:___________________________
F-2-7
EXHIBIT G
FORM OF BENEFIT PLAN AFFIDAVIT
Re: LUMINENT MORTGAGE TRUST 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
ERISA-RESTRICTED CERTIFICATES
STATE OF [_________] )
)ss:
COUNTY/CITY OF [_______] )
Under penalties of perjury, I, the undersigned, declare that, to the best
of my knowledge and belief, the following representations are true, correct, and
complete.
1. That I am a duly authorized officer of [Organization], a [State]
corporation (the "Purchaser"), whose taxpayer identification number is
[____________], and on behalf of which I have the authority to make this
affidavit.
2. That the Purchaser is acquiring any of the ERISA-Restricted
Certificates, each representing an interest in the Trust Fund, for certain
assets of which one or more real estate mortgage investment conduit
("REMIC") elections are to be made under Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code").
3. The Purchaser meets the requirements of clause (i), (ii), (iii) or
(iv) below:
(i) the Purchaser is not an employee benefit plan as defined in
Section 3(3) of ERISA that is subject to Title I of ERISA or a plan as
defined in Section 4974(e)(i) of the Code that is subject to Section
4975 of the Code or an entity that holds assets of such an employee
benefit plan or plan (or is deemed to hold the assets of such an
employee benefit plan or plan pursuant to 29 CFR section 2510.3-101 as
modified by section 3(42) of ERISA) by reason of such employee benefit
plan's or plan's investment in the entity (collectively, a "Benefit
Plan") or a governmental plan (as defined in section 3(32) of ERISA)
or church plan (as defined in section 3(33) of ERISA) that is subject
to any federal, state or local law that is substantially similar to
prohibited transaction provisions of ERISA or the Code or the
fiduciary provisions of ERISA ("Similar Law") (such a plan, together
with a Benefit Plan, (a "Plan") nor any Person acting for or on behalf
of a Plan or using the assets of a Plan;
(ii) in case of an ERISA-Restricted Certificate other than a
Class C, a Class P or Residual Certificate, (A) in the case of a
Benefit Plan, the Purchaser is an accredited investor within the
meaning of the Underwriter's Exemption, (B) (I) in the case of a
Benefit Plan, the Purchaser is an insurance company and acquiring the
G-1
Certificates with funds held in an "insurance company general account"
(as defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60"), as published in 60 Fed. Reg. 35925 (July 12,
1995)) and there is no Plan subject to ERISA or the Code with respect
to which the amount of such general account's reserves and liabilities
for the contract(s) held by or on behalf of such Plan and all other
such Plans maintained by the same employer (or affiliate thereof as
defined in section V(a)(1) of PTCE 95-60) or by the same employee
organization exceeds 10% of the total of all reserves and liabilities
of such general account (as such amounts are determined under section
I(a) of PTCE 95-60) at the date of acquisition and all Plans that have
an interest in such general account are Plans to which PTCE 95-60
applies and (II) the acquisition and holding of such Certificate or
interest therein will not result in an non-exempt prohibited
transaction within the meaning of section 406 of ERISA or section 4975
of the Code or a violation of Similar Law; or
(iii) in the case of an ERISA-Restricted Certificate other than a
Residual Certificate, the Purchaser has provided an Opinion of Counsel
obtained at the Transferee's expense, satisfactory to the Securities
Administrator, an Opinion of Counsel with respect to this Benefit Plan
Affidavit is an opinion of counsel to the effect that the acquisition
and the holding of such Certificate by a Plan, or any person acting
for, on behalf of, or with assets of, a Plan will not constitute or
result in a non-exempt prohibited transaction under Title I of ERISA
or Section 4975 of the Code or a violation of any Similar Law and will
not subject the Trustee, the Depositor, the Securities Administrator,
an Underwriter, the Master Servicer or the Servicers to any obligation
or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the
Pooling Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Pooling Agreement, dated as of January 1,
2007, by and among Xxxxx Asset Securitization, Inc., as Depositor, Maia Mortgage
Finance Statutory Trust, as Seller, HSBC Bank USA, National Association, as
Trustee, and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer")
and as securities administrator (the "Securities Administrator").
[SIGNATURE PAGE FOLLOWS]
G-2
[Purchaser]
By: _______________________
Name: _______________________
Title: _______________________
G-3
EXHIBIT H
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 9.02
Luminent Mortgage Trust 0000-0 (xxx "Xxxxx Xxxx")
Mortgage Pass-Through Certificates, Series 2007-1
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class [R][RX] Certificate (the
"Residual Certificate") issued pursuant to the Pooling Agreement, dated January
1, 2007 (the "Agreement"), among Xxxxx Asset Securitization, Inc., as Depositor,
Maia Mortgage Finance Statutory Trust, as Seller, Xxxxx Fargo Bank, N.A. as
Securities Administrator and Master Servicer, and HSBC Bank USA, National
Association, as Trustee. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date of
the transfer, a Permitted Transferee. The Transferee is acquiring the Residual
Certificate either (i) for its own account or (ii) as nominee, trustee or agent
for another Person who is a Permitted Transferee and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
H-1
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 9.02(f) of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 9.02(f) of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due,
and it intends to do so in the future.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is (i) a U.S. Person as defined in Code Section
7701(a)(30) or (ii) (A) the Transferee holds the Residual Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Trustee with an effective Internal Revenue
Service Form W-8ECI (or successor thereto) or (B) the Transferee has delivered
to both the transferor and the Trustee an Opinion of Counsel from a
nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of the Residual Certificate will not be
disregarded for federal income tax purposes.
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
H-2
14. The Transferee is not an employee benefit plan as defined in section
3(3) of ERISA that is subject to Title I of ERISA or a plan as defined in
section 4975(e)(1) of the Code that is subject to section 4975 of the Code or an
entity that holds assets of such an employee benefit plan or plan (or is deemed
to hold the assets of such an employee benefit plan or plan pursuant to 29 CFR
section 2510.3-101 as modified by section 3(42) of ERISA by reason of such
employee benefit plan's or plan's investment in the entity) or a governmental
plan (as defined in section 3(32) of ERISA) or church plan (as defined in
section 3(33) of ERISA) that is subject to any federal, state or local law that
is substantially similar to prohibited transaction provisions of ERISA or the
Code or the fiduciary provisions of ERISA, (collectively, a "Plan") and the
Transferee is not acting on behalf of, or using assets of, any such a Plan or
arrangement.
15. The Transferee understands that it may incur tax liabilities with
respect to the Residual Certificate in excess of cash flows generated thereby.
16. The Transferee intends to pay taxes associated with holding the
Residual Certificate as such taxes become due.
* * *
H-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
________________________________
Print Name of Transferee
By______________________________
Name:
Title:
Personally appeared before me the above-named _________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of _______________________,
____
______________________________________________________
NOTARY PUBLIC
My Commission expires the ____ day of ________, _____.
H-4
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
|_| The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of
the anticipated tax liabilities over (b) the present value of the
anticipated savings associated with holding such Residual Certificate,
in each case calculated in accordance with U.S. Treasury Regulations
Sections 1.860E-1(c)(7) and (8), computing present values using a
discount rate equal to the short-term Federal rate prescribed by
Section 1274(d) of the Code and the compounding period used by the
Transferee.
OR
--
|_| The transfer of the Residual Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from Residual Certificate will only be taxed in
the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and
investment rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by
the Transferee, the Transferee will require its transferee to
complete a representation in the form of this Attachment A as
a condition of such transferee's purchase of the Residual
Certificate.
H-5
EXHIBIT I
ADDITIONAL FORM 10-D DISCLOSURE
------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
------------------------------------------------------------------------------------------------------------
Item 1: Distribution and Pool
Performance Information
------------------------------------------------------------------------------------------------------------
Information included in the Monthly Statement Servicer
Master Servicer
Securities Administrator
------------------------------------------------------------------------------------------------------------
Any information required by 1121 which is NOT Depositor
included on the Monthly Statement.(2)
------------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective property,
that is material to Certificateholders, including
any proceedings known to be contemplated by
governmental authorities:
------------------------------------------------------------------------------------------------------------
[] Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator
and Depositor
------------------------------------------------------------------------------------------------------------
[] Sponsor (Seller) Seller (if a party to the Pooling Agreement) or
Depositor
------------------------------------------------------------------------------------------------------------
[] Depositor Depositor
------------------------------------------------------------------------------------------------------------
[] Trustee Trustee
------------------------------------------------------------------------------------------------------------
[] Securities Administrator Securities Administrator
------------------------------------------------------------------------------------------------------------
[] Master Servicer Master Servicer
------------------------------------------------------------------------------------------------------------
[] Custodian Custodian
------------------------------------------------------------------------------------------------------------
[] 1110(b) Originator Depositor
------------------------------------------------------------------------------------------------------------
[] Any 1108(a)(2) Servicer (other than the Master Servicer
Servicer or Securities Administrator)
------------------------------------------------------------------------------------------------------------
[] Any other party contemplated by 1100(d)(1) Depositor
------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the
sponsor, depositor or issuing entity, that are
backed by the same asset pool or are otherwise
issued by the issuing entity, whether or not
-------------------------------------------------------------------------------------------------------------
I-1
----------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
----------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
----------------------------------------------------------------------------------------------------
registered, provide the sales and use of proceeds
information in Item 701 of Regulation S-K.
Pricing information can be omitted if securities
were not registered.
----------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
Trustee
Information from Item 3 of Part II of Form 10-Q:
Report the occurrence of any Event of Default
(after expiration of any grace period and
provision of any required notice)
----------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote Securities Administrator
of Security Holders Trustee
Information from Item 4 of Part II of Form 10-Q
----------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool
Assets Depositor
Item 1112(b) - Significant Obligor Financial
Information*
----------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
----------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement
Provider Information
Item 1114(b)(2) - Credit Enhancement Provider
Financial Information*
----------------------------------------------------------------------------------------------------
[] Determining applicable disclosure threshold Depositor
----------------------------------------------------------------------------------------------------
[] Requesting required financial information Depositor
(including any required accountants' consent to
the use thereof) or effecting incorporation by
reference
----------------------------------------------------------------------------------------------------
Item 1115(b) - Derivative Counterparty
Financial Information*
----------------------------------------------------------------------------------------------------
[] Determining current maximum probable exposure Depositor
----------------------------------------------------------------------------------------------------
[] Determining current significance percentage Depositor
----------------------------------------------------------------------------------------------------
[] Requesting required financial information Depositor
(including any required accountants' consent to
the use thereof) or effecting incorporation by
reference
----------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the Items.
----------------------------------------------------------------------------------------------------
I-2
----------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
----------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Item 8: Other Information Any party responsible for the applicable Form
8-K Disclosure item
Disclose any information required to be reported
on Form 8-K during the period covered by the
Form 10-D but not reported
----------------------------------------------------------------------------------------------------
Item 9: Exhibits
----------------------------------------------------------------------------------------------------
Monthly Statement to Certificateholders Securities Administrator
----------------------------------------------------------------------------------------------------
Exhibits required by Item 601 of Regulation S-K, Depositor
such as material agreements
----------------------------------------------------------------------------------------------------
I-3
EXHIBIT J
ADDITIONAL FORM 10-K DISCLOSURE
----------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
----------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
----------------------------------------------------------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure items on
Disclose any information required to be reported Form 8-K
on Form 8-K during the fourth quarter covered
by the Form 10-K but not reported
----------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Securities Administrator
Schedules Depositor
----------------------------------------------------------------------------------------------------------
Reg AB Item 1112(b): Significant
Obligors of Pool Assets
----------------------------------------------------------------------------------------------------------
Significant Obligor Financial Information* Depositor
----------------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
----------------------------------------------------------------------------------------------------------
Reg AB Item 1114(b)(2): Credit
Enhancement Provider Financial
Information
----------------------------------------------------------------------------------------------------------
[] Determining applicable disclosure threshold Depositor
----------------------------------------------------------------------------------------------------------
[] Requesting required financial information Depositor
(including any required accountants' consent
to the use thereof) or effecting incorporation by
reference
----------------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
----------------------------------------------------------------------------------------------------------
Reg AB Item 1115(b): Derivative
Counterparty Financial Information
----------------------------------------------------------------------------------------------------------
[] Determining current maximum probable exposure Depositor
----------------------------------------------------------------------------------------------------------
[] Determining current significance percentage Depositor
----------------------------------------------------------------------------------------------------------
[] Requesting required financial information Depositor
(including any required accountants' consent to
the use thereof) or effecting incorporation by
reference
----------------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
----------------------------------------------------------------------------------------------------------
J-1
----------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
----------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective property,
that is material to Certificateholders, including
any proceedings known to be contemplated by
governmental authorities:
-----------------------------------------------------------------------------------------------------------
[] Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator
and Depositor
-----------------------------------------------------------------------------------------------------------
[] Sponsor (Seller) Seller (if a party to the Pooling Agreement)
or Depositor
-----------------------------------------------------------------------------------------------------------
[] Depositor Depositor
-----------------------------------------------------------------------------------------------------------
[] Trustee Trustee
-----------------------------------------------------------------------------------------------------------
[] Securities Administrator Securities Administrator
-----------------------------------------------------------------------------------------------------------
[] Master Servicer Master Servicer
-----------------------------------------------------------------------------------------------------------
[] Custodian Custodian
-----------------------------------------------------------------------------------------------------------
[] 1110(b) Originator Depositor
-----------------------------------------------------------------------------------------------------------
[] Any 1108(a)(2) Servicer (other than the Master Servicer
Servicer or Securities Administrator)
-----------------------------------------------------------------------------------------------------------
[] Any other party contemplated by 1100(d)(1) Depositor
-----------------------------------------------------------------------------------------------------------
Reg AB Item 1119: Affiliations and
Relationships
-----------------------------------------------------------------------------------------------------------
Whether (a) the Sponsor (Seller), Depositor or Depositor as to (a)
Issuing Entity is an affiliate of the following Sponsor/Seller as to (a)
parties, and (b) to the extent known and material,
any of the following parties are affiliated with
one another:
-----------------------------------------------------------------------------------------------------------
[] Master Servicer Master Servicer
-----------------------------------------------------------------------------------------------------------
[] Securities Administrator Securities Administrator
-----------------------------------------------------------------------------------------------------------
[] Trustee Trustee
-----------------------------------------------------------------------------------------------------------
[] Any other 1108(a)(3) servicer Servicer
-----------------------------------------------------------------------------------------------------------
[] Any 1110 Originator Depositor/Sponsor
-----------------------------------------------------------------------------------------------------------
[] Any 1112(b) Significant Obligor Depositor/Sponsor
-----------------------------------------------------------------------------------------------------------
[] Any 1114 Credit Enhancement Provider Depositor/Sponsor
-----------------------------------------------------------------------------------------------------------
[] Any 1115 Derivate Counterparty Provider Depositor/Sponsor
-----------------------------------------------------------------------------------------------------------
[] Any other 1101(d)(1) material party Depositor/Sponsor
-----------------------------------------------------------------------------------------------------------
Whether there are any "outside the ordinary Depositor as to (a)
course business arrangements" other than would Sponsor/Seller as to (a)
be obtained in an arm's length transaction
between (a) the Sponsor (Seller), Depositor or
Issuing Entity on the one hand, and (b) any of the
following parties (or their affiliates) on the other
hand, that exist currently or within the past two
years and that are material to a
Certificateholder's understanding of the
Certificates:
-----------------------------------------------------------------------------------------------------------
J-2
-------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
[] Master Servicer Master Servicer
------------------------------------------------------------------------------------------------------
[] Securities Administrator Securities Administrator
------------------------------------------------------------------------------------------------------
[] Trustee Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any other 1108(a)(3) servicer Servicer
------------------------------------------------------------------------------------------------------
[] Any 1110 Originator Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any 1112(b) Significant Obligor Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any 1114 Credit Enhancement Provider Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any 1115 Derivate Counterparty Provider Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any other 1101(d)(1) material party Depositor/Sponsor
------------------------------------------------------------------------------------------------------
Whether there are any specific relationships Depositor as to (a)
involving the transaction or the pool assets Sponsor/Seller as to (a)
between (a) the Sponsor (Seller), Depositor or
Issuing Entity on the one hand, and (b) any of the
following parties (or their affiliates) on the other
hand, that exist currently or within the past two
years and that are material:
------------------------------------------------------------------------------------------------------
[] Master Servicer Master Servicer
------------------------------------------------------------------------------------------------------
[] Securities Administrator Securities Administrator
------------------------------------------------------------------------------------------------------
[] Trustee Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any other 1108(a)(3) servicer Servicer
------------------------------------------------------------------------------------------------------
[] Any 1110 Originator Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any 1112(b) Significant Obligor Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any 1114 Credit Enhancement Provider Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any 1115 Derivate Counterparty Provider Depositor/Sponsor
------------------------------------------------------------------------------------------------------
[] Any other 1101(d)(1) material party Depositor/Sponsor
------------------------------------------------------------------------------------------------------
J-3
EXHIBIT K
FORM 8-K DISCLOSURE INFORMATION
---------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
---------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
---------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive All parties
Agreement
Disclosure is required regarding entry into or
amendment of any definitive agreement that is
material to the securitization, even if depositor is
not a party.
Examples: servicing agreement, custodial
agreement.
Note: disclosure not required as to definitive
agreements that are fully disclosed in the
prospectus
---------------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material All parties
Definitive Agreement
Disclosure is required regarding termination of
any definitive agreement that is material to the
securitization (other than expiration in
accordance with its terms), even if depositor is
not a party.
Examples: servicing agreement, custodial
agreement.
---------------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership Depositor
Disclosure is required regarding the bankruptcy
or receivership, with respect to any of the
following:
---------------------------------------------------------------------------------------------------
[] Sponsor (Seller) Depositor/Sponsor (Seller)
---------------------------------------------------------------------------------------------------
[] Depositor Depositor
---------------------------------------------------------------------------------------------------
[] Master Servicer Master Servicer
---------------------------------------------------------------------------------------------------
[] Affiliated Servicer Servicer
---------------------------------------------------------------------------------------------------
[] Other Servicer servicing 20% or more of the Servicer
pool assets at the time of the report
---------------------------------------------------------------------------------------------------
[] Other material servicers Servicer
---------------------------------------------------------------------------------------------------
[] Trustee Trustee
---------------------------------------------------------------------------------------------------
[] Securities Administrator Securities Administrator
---------------------------------------------------------------------------------------------------
[] Significant Obligor Depositor
---------------------------------------------------------------------------------------------------
[] Credit Enhancer (10% or more) Depositor
---------------------------------------------------------------------------------------------------
[] Derivative Counterparty Depositor
---------------------------------------------------------------------------------------------------
[] Custodian Custodian
---------------------------------------------------------------------------------------------------
K-1
---------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
---------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Depositor
Accelerate or Increase a Direct Financial Master Servicer
Obligation or an Obligation under an Off- Securities Administrator
Balance Sheet Arrangement
Includes an early amortization, performance
trigger or other event, including event of default,
that would materially alter the payment
priority/distribution of cash flows/amortization
schedule.
Disclosure will be made of events other than
waterfall triggers which are disclosed in the
monthly statements to the certificateholders.
---------------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights Securities Administrator
of Security Holders Trustee
Depositor
Disclosure is required of any material
modification to documents defining the rights of
Certificateholders, including the Pooling
Agreement.
---------------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal
Year
Disclosure is required of any amendment "to the
governing documents of the issuing entity".
---------------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Depositor
Computational Material
---------------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Master Servicer/Securities
Securities Administrator Administrator/Depositor/
Servicer/Trustee
Requires disclosure of any removal, replacement,
substitution or addition of any master servicer,
affiliated servicer, other servicer servicing 10%
or more of pool assets at time of report, other
material servicers or trustee.
---------------------------------------------------------------------------------------------------
Reg AB disclosure about any new servicer or Servicer/Master Servicer/Depositor
master servicer is also required.
---------------------------------------------------------------------------------------------------
Reg AB disclosure about any new Trustee is also Trustee
required.
---------------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement Depositor/Securities Administrator/Trustee
or External Support
Covers termination of any enhancement in
---------------------------------------------------------------------------------------------------
K-2
---------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
---------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
---------------------------------------------------------------------------------------------------
manner other than by its terms, the addition of an
enhancement, or a material change in the
enhancement provided. Applies to external
credit enhancements as well as derivatives.
---------------------------------------------------------------------------------------------------
Reg AB disclosure about any new enhancement Depositor
provider is also required.
---------------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Securities Administrator
Distribution Trustee
---------------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Depositor
Disclosure
If any material pool characteristic differs by 5%
or more at the time of issuance of the securities
from the description in the final prospectus,
provide updated Reg AB disclosure about the
actual asset pool.
---------------------------------------------------------------------------------------------------
If there are any new servicers or originators Depositor
required to be disclosed under Regulation AB as
a result of the foregoing, provide the information
called for in Items 1108 and 1110 respectively.
---------------------------------------------------------------------------------------------------
Item 7.01- Reg FD Disclosure All parties
---------------------------------------------------------------------------------------------------
Item 8.01- Other Events Depositor
Any event, with respect to which information is
not otherwise called for in Form 8-K, that the
registrant deems of importance to
certificateholders.
---------------------------------------------------------------------------------------------------
Item 9.01- Financial Statements and Responsible party for reporting/disclosing
Exhibits the financial statement or exhibit
---------------------------------------------------------------------------------------------------
K-3
EXHIBIT L
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxx Fargo Bank, N.A. as Securities Administrator
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Xxxxx Asset Securitization, Inc., as Depositor
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: [ - ]
Attn: Corporate Trust Services - LUMINENT MORTGAGE TRUST 2007-1 -SEC REPORT
PROCESSING
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section 4.05 of the Pooling Agreement, dated as of
January 1, 2007, by and among Xxxxx Asset Securitization, Inc., as depositor
(the "Depositor"), Maia Mortgage Finance Statutory Trust, as Seller (the
"Seller"), HSBC Bank USA, National Association, as trustee (the "Trustee"), and
Xxxxx Fargo Bank, N.A., in its dual capacities as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). The
Undersigned, as [ ], hereby notifies you that certain events have come to our
attention that [will][may] need to be disclosed on Form [ ].
Description of Additional Form [ ] Disclosure:
----------------------------------------------
List of Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any inquiries related to this notification should be directed to [ ], phone
number: [ ]; email address: [ ].
[NAME OF PARTY]
as [role]
By: __________________
Name:
Title:
L-1
EXHIBIT M
FORM OF CONFIRMATION TO CAP AGREEMENT
Financial Markets
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Memorandum January 25, 2007
To: Xxxxx Fargo Bank, N.A., not in its individual capacity but
solely as trustee of the supplemental interest trust with
respect to Luminent Mortgage Trust 2007-1 ("Party B")
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: Luminent 2007-1
Fax: (000) 000-0000
or for overnight delivery,
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
cc: Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: The Royal Bank of Scotland plc ("Party A")
Re:
Our Reference IRG16175012.2A.2B
Number:
--------------------------------------------------------------------------------
Dear Sir or Madam:
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into between Xxxxx Fargo Bank, N.A., not in its
individual capacity but solely as trustee of the supplemental interest trust
(the "Supplemental Interest Trust") with respect to Luminent Mortgage Trust
2007-1, and The Royal Bank of Scotland plc, acting through its agent, Greenwich
Capital Markets, Inc. (each a "party" and together "the parties") on the Trade
Date specified below (the "Transaction") pursuant to the pooling agreement (the
"Pooling Agreement"), dated and effective as of January 1, 2007, among Xxxxx
Asset Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage
Finance Statutory Trust, as seller, Xxxxx Fargo Bank, N.A., as master servicer
and securities administrator, and HSBC Bank USA, National Association, as
trustee. This letter agreement constitutes the sole and complete "Confirmation",
as referred to in the Master Agreement as well as a "Schedule" as referred to in
the Master Agreement.
This letter agreement constitutes a "Confirmation" and the definitions and
provisions contained in the 2000 ISDA Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc., ("ISDA")
are incorporated into this Confirmation. This Confirmation will be governed by
and subject to the terms and conditions which would be applicable if, prior to
the Trade Date, the parties had executed and delivered an ISDA Master Agreement
(Multicurrency-Cross Border), in the form published by ISDA in 1992 (the "Master
Agreement"), with the attached Schedule B as the Schedule to the Master
Agreement and the modifications provided below (collectively, the "Agreement").
In the event of any inconsistency between the provisions of the Master Agreement
and this Confirmation and the attached Schedule B, this Confirmation will
govern. Terms capitalized but not defined herein or in the Definitions
incorporated herein shall have the respective meanings attributed to them in the
Pooling Agreement.
1 This Confirmation evidences a complete binding agreement between the
parties as to the terms of the Transaction to which this Confirmation
relates. In addition, each party represents to the other party and will be
deemed to represent to the other party on the date on which it enters into
a Transaction that (absent a written agreement between the parties that
expressly imposes affirmative obligations to the contrary for that
Transaction):
(i) Principal. With respect to Party A, it is acting as principal and not
as agent when entering into the Transaction. With respect to Party B,
it is acting as trustee of the Supplemental Interest Trust with
respect to Luminent Mortgage Trust 2007-1 which is acting as principal
and not as agent when entering into the Transaction.
(ii) Non-Reliance. With respect to Party A, it is acting for its own
account and it has made its own independent decisions to enter into
the Transaction and as to whether the Transaction is appropriate or
proper for it based upon its own judgment and upon advice from such
advisors as it has deemed necessary. With respect to Party B, it is
acting as trustee of the Supplemental Interest Trust with respect to
Luminent Mortgage Trust 2007-1 which is acting for its own account and
it has made its own independent decisions to enter into the
Transaction and as to whether the Transaction is appropriate or proper
for it based upon its own judgment and upon advice from such advisors
as it has deemed necessary.
(iii) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks
of the Agreement and that Transaction. It is also capable of
assuming, and assumes, the financial and other risks of the Agreement
and that Transaction.
(iv) Status of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of that Transaction.
2 The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period, the amount set
forth on Schedule A attached hereto.
Trade Date: January 22, 2007
Effective Date: January 25, 2007
Termination Date: January 25, 2015, subject to adjustment in accordance
with the Modified Following Business Day
Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Date: January 25, 2007
Fixed Amount: USD 995,000.00.
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: See Amortization Schedule in Schedule A attached
hereto
Floating Rate Payer Period End Dates: The 25th day of each month of each year commencing
March 25, 2007, through and including the
Termination Date, subject to adjustment in accordance
with the Modified Following Business Day
Convention.
Floating Rate Payer Payment Dates: Early Payment shall be applicable. The Floating Rate
Payer Payment Dates shall be one Business Day prior
to each Floating Rate Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided however, that if the
Floating Rate Option for any Calculation Period is
greater than 10.500%, then the Floating Rate Option
for such Calculation Period shall be deemed to be
10.500%.
Designated Maturity: One month
Spread: N/A.
Floating Rate Day Count Fraction: Actual/360
Reset Dates: First day of each Calculation Period
Business Days for Payments: New York
Calculation Agent: Party A
3 Account Details:
Account for payments to Party A: For the account of:
The Royal Bank of Scotland Financial Markets Fixed
Income and Interest Rate Derivative Operations
London SWIFT XXXXXX0XXXX
with JPMorgan Chase Bank New York XXXXXX00
ABA # 000000000
Account Number 400930153
Account for payments to Party B: Xxxxx Fargo Bank, N.A.
ABA 000-000-000
Account Number: 0000000000
Account Name: Corporate Trust Clearing
FFC: 50978504, Luminent 2007-1 Cap Account
4 Offices:
The Office of Party A for this Transaction is: London
The Office of Party B for this Transaction is: Columbia, Maryland
5 Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: 0000 000 0000 / 6486 Phone: 0000 000 0000
THE ROYAL BANK OF SCOTLAND PLC
By: Greenwich Capital Markets, Inc., its agent
By ________________________________________
Name:
Title:
Accepted and confirmed as of the Trade Date written above:
XXXXX FARGO BANK, N.A., not in its individual capacity but solely as trustee of
the supplemental interest trust with respect to Luminent Mortgage Trust 2007-1
By:________________________________________
Name:
Title:
Schedule A to the Confirmation dated as of January 25, 2007
Re: Reference Number IRG16175012.2A.2B
Amortization Schedule, subject to adjustment in accordance with the Modified
Following Business Day Convention
----------------------------------------------------------------------------
From and To but Notional Amount Cap Rate
---------- --------- --------------- --------
Including excluding (USD) (%)
----------------------------------------------------------------------------
2/25/2007 3/25/2007 13,218,156.43 6.449423
----------------------------------------------------------------------------
3/25/2007 4/25/2007 25,539,615.94 5.795321
----------------------------------------------------------------------------
4/25/2007 5/25/2007 37,013,154.01 5.998870
----------------------------------------------------------------------------
5/25/2007 6/25/2007 47,685,052.63 5.795394
----------------------------------------------------------------------------
6/25/2007 7/25/2007 57,722,277.58 5.999189
----------------------------------------------------------------------------
7/25/2007 8/25/2007 67,001,865.18 5.795707
----------------------------------------------------------------------------
8/25/2007 9/25/2007 85,830,296.40 5.862921
----------------------------------------------------------------------------
9/25/2007 10/25/2007 93,116,442.27 6.068664
----------------------------------------------------------------------------
10/25/2007 11/25/2007 99,833,254.51 5.862879
----------------------------------------------------------------------------
11/25/2007 12/25/2007 106,012,520.87 6.068621
----------------------------------------------------------------------------
12/25/2007 1/25/2008 111,684,401.08 5.862838
----------------------------------------------------------------------------
1/25/2008 2/25/2008 116,877,507.77 5.862816
----------------------------------------------------------------------------
2/25/2008 3/25/2008 121,618,983.58 6.288505
----------------------------------------------------------------------------
3/25/2008 4/25/2008 126,336,928.72 5.866006
----------------------------------------------------------------------------
4/25/2008 5/25/2008 130,228,401.21 6.071850
----------------------------------------------------------------------------
5/25/2008 6/25/2008 133,742,845.23 5.865961
----------------------------------------------------------------------------
6/25/2008 7/25/2008 136,902,148.37 6.071803
----------------------------------------------------------------------------
7/25/2008 8/25/2008 139,888,841.98 5.868658
----------------------------------------------------------------------------
8/25/2008 9/25/2008 142,389,954.04 5.868635
----------------------------------------------------------------------------
9/25/2008 10/25/2008 144,595,519.52 6.074566
----------------------------------------------------------------------------
10/25/2008 11/25/2008 146,523,189.80 5.868589
----------------------------------------------------------------------------
11/25/2008 12/25/2008 148,189,694.24 6.074518
----------------------------------------------------------------------------
12/25/2008 1/25/2009 149,610,886.31 5.868543
----------------------------------------------------------------------------
1/25/2009 2/25/2009 150,801,787.51 5.868519
----------------------------------------------------------------------------
2/25/2009 3/25/2009 151,776,629.09 6.530477
----------------------------------------------------------------------------
3/25/2009 4/25/2009 152,866,643.56 5.876916
----------------------------------------------------------------------------
4/25/2009 5/25/2009 154,322,766.72 6.102644
----------------------------------------------------------------------------
5/25/2009 6/25/2009 154,660,388.36 5.895757
----------------------------------------------------------------------------
6/25/2009 7/25/2009 154,835,531.20 6.102587
----------------------------------------------------------------------------
7/25/2009 8/25/2009 154,896,990.24 5.897167
----------------------------------------------------------------------------
8/25/2009 9/25/2009 155,132,879.06 5.903339
----------------------------------------------------------------------------
9/25/2009 10/25/2009 154,859,861.00 6.110420
----------------------------------------------------------------------------
10/25/2009 11/25/2009 154,464,820.94 5.903279
----------------------------------------------------------------------------
11/25/2009 12/25/2009 153,956,205.96 6.110357
----------------------------------------------------------------------------
12/25/2009 1/25/2010 153,342,005.72 5.903218
----------------------------------------------------------------------------
1/25/2010 2/25/2010 152,629,775.47 5.903188
----------------------------------------------------------------------------
2/25/2010 3/25/2010 151,826,658.07 6.570633
----------------------------------------------------------------------------
----------------------------------------------------------------------------
3/25/2010 4/25/2010 150,939,404.89 5.904735
----------------------------------------------------------------------------
4/25/2010 5/25/2010 149,974,395.70 6.111860
----------------------------------------------------------------------------
5/25/2010 6/25/2010 148,937,657.46 5.904672
----------------------------------------------------------------------------
6/25/2010 7/25/2010 147,834,882.35 6.111795
----------------------------------------------------------------------------
7/25/2010 8/25/2010 146,671,444.82 5.904609
----------------------------------------------------------------------------
8/25/2010 9/25/2010 145,452,417.75 5.904577
----------------------------------------------------------------------------
9/25/2010 10/25/2010 144,182,587.91 6.111696
----------------------------------------------------------------------------
10/25/2010 11/25/2010 142,866,470.61 5.904512
----------------------------------------------------------------------------
11/25/2010 12/25/2010 141,508,323.59 6.111628
----------------------------------------------------------------------------
12/25/2010 1/25/2011 140,112,160.28 5.904446
----------------------------------------------------------------------------
1/25/2011 2/25/2011 138,681,762.35 5.904413
----------------------------------------------------------------------------
2/25/2011 3/25/2011 137,220,691.70 6.570206
----------------------------------------------------------------------------
3/25/2011 4/25/2011 135,732,301.76 5.904346
----------------------------------------------------------------------------
4/25/2011 5/25/2011 134,219,748.34 6.111456
----------------------------------------------------------------------------
5/25/2011 6/25/2011 133,586,028.33 5.931877
----------------------------------------------------------------------------
6/25/2011 7/25/2011 132,152,348.42 6.146238
----------------------------------------------------------------------------
7/25/2011 8/25/2011 130,798,003.37 5.946346
----------------------------------------------------------------------------
8/25/2011 9/25/2011 142,662,550.75 6.327084
----------------------------------------------------------------------------
9/25/2011 10/25/2011 140,370,634.27 6.551193
----------------------------------------------------------------------------
10/25/2011 11/25/2011 138,033,852.93 6.329785
----------------------------------------------------------------------------
11/25/2011 12/25/2011 135,725,168.56 6.551029
----------------------------------------------------------------------------
12/25/2011 1/25/2012 133,444,826.02 6.329625
----------------------------------------------------------------------------
1/25/2012 2/25/2012 48,613,898.11 6.329544
----------------------------------------------------------------------------
2/25/2012 3/25/2012 47,977,996.16 6.787356
----------------------------------------------------------------------------
3/25/2012 4/25/2012 47,340,887.94 6.329380
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Schedule B to the Confirmation dated as of January 25, 2007
Re: Reference Number IRG16175012.2A.2B
Between The Royal Bank of Scotland plc ("Party A") and Xxxxx Fargo Bank, N.A.,
not in its individual capacity but solely as trustee of the supplemental
interest trust with respect to Luminent Mortgage Trust 2007-1 ("Party B")
Part 1. Termination Provisions.
(a) "Specified Entity" means (i) in relation to Party A for all purposes of the
Agreement: None;
and (ii) in relation to Party B for all purposes of the Agreement: None.
(b) The "Failure to Pay or Deliver" provisions of Section 5(a)(i) will apply to
Party A and will apply to Party B; provided, however, that Section 5(a)(i)
is hereby amended by replacing the word "third" with the word "second".
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) of the Agreement
will be inapplicable to Party A and Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii) of the
Agreement will be applicable to Party B only with respect to return of
excess collateral to Party A under Paragraph 3(b) of the Credit Support
Annex to this Agreement. Notwithstanding Sections 5(a)(i) and 5(a)(iii),
any failure by Party A to comply with or perform any obligation to be
complied with or performed by Party A under the Credit Support Annex to
this Agreement shall not be an Event of Default unless (A) a Second Rating
Trigger Event with respect to Xxxxx'x has occurred and at least 30 Local
Business Days have elapsed since the Second Rating Trigger Event has
occurred and (B) such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to Party A.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) of the Agreement
will be inapplicable to Party B.
(f) The "Default Under Specified Transaction" provisions of Section 5(a)(v) of
the Agreement will be applicable to Party A and will be inapplicable to
Party B.
(g) The "Cross Default" provisions of Section 5(a)(vi) of the Agreement will
apply to Party A with a Threshold Amount of 3% of the shareholder's equity
of Party A.
The "Cross Default" provisions of Section 5(a)(vi) of the Agreement will be
inapplicable to Party B.
(h) The "Bankruptcy" provision of Section 5(a)(vii) of the Agreement will be
applicable to Party B, subject to the following modifications:
(i) Section 5(a)(vii)(2), (7) and (9) shall not apply;
(ii) Section 5(a)(vii)(4) shall not apply to the extent that it refers to
proceedings or petitions instituted or presented by Party A or its
affiliates;
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(iii) The phrase "seeks or" in Section 5(a)(vii)(6) shall be deemed
deleted; and
(iv) Section 5(a)(vii)(8) shall apply only to the extent that a relevant
event has an effect that is analogous to an effect described in
Section 5(a)(vii)(1) through (7) (as amended in this Part 1(h)) that
applies to Party B.
Section 5(a)(vii)(6) shall not apply to Party B in the case of an
appointment of (i) Xxxxx Fargo Bank, N.A., as the Supplemental Interest
Trust Trustee to the Supplemental Interest Trust under the Pooling
Agreement, (ii) Xxxxx Fargo, N.A., as the Custodian under the Pooling
Agreement, or (iii) any successor to Xxxxx Fargo, N.A. that is appointed in
accordance with the Pooling Agreement.
(i) The "Tax Event upon Merger" provisions of Section 5(b)(iii) shall not apply
to the extent that Party A is both the Burdened Party and the Affected
Party.
(j) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the
Agreement will be inapplicable to Party A and Party B.
(k) The "Automatic Early Termination" provision of Section 6(a) of the
Agreement will be inapplicable to Party A and Party B.
(l) Payments on Early Termination.
(i) For the purpose of Section 6(e) of the Agreement:
(A) Market Quotation will apply; and
(B) The Second Method will apply.
(ii) Notwithstanding Section 6 of this Agreement, so long as Party A is (A)
the Affected Party in respect of an Additional Termination Event or a
Tax Event Upon Merger or (B) the Defaulting Party in respect of any
Event of Default, paragraphs (A) to (F) below shall apply:
(A) The definition of "Market Quotation" shall be deleted in its
entirety and replaced with the following:
"Market Quotation" means, with respect to one or more Terminated
Transactions, an offer which, when made, is capable of becoming
legally binding upon acceptance (any such offer, a "Firm Offer") which
is (1) made by a Reference Market-maker that is an Eligible
Replacement, (2) for an amount that would be paid to Party B
(expressed as a negative number) or by Party B (expressed as a
positive number) in consideration of an agreement between Party B and
such Reference Market-maker to enter into a transaction (the
"Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transactions or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that date, (3) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of Transactions are to
be excluded but, without limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included and (4) made in respect
of a Replacement Transaction with commercial terms substantially the
M-2
same as those of this Agreement (save for the exclusion of provisions
relating to Transactions that are not Terminated Transactions)."
(B) The definition of "Settlement Amount" shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early Termination Date,
an amount (as determined by Party B (or the Depositor on its behalf))
equal to:
(1) If a Market Quotation for the relevant Terminated Transaction
or group of Terminated Transactions is selected by Party A and
accepted by Party B so as to become legally binding on or before
the day falling ten Local Business Days after the day on which
the Early Termination Date is designated (or such later day as
Party B may specify in writing to Party A, which in any event
will not be later than the Early Termination Date) (such day, the
"Latest Settlement Amount Determination Day"), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such Market Quotation; or
(2) If on the Latest Settlement Amount Determination Day, no
Market Quotation for the relevant Terminated Transaction or group
of Terminated Transactions has been accepted by Party B so as to
become legally binding and one or more Market Quotations have
been made and remain capable of legally binding upon acceptance,
the Settlement Amount shall equal the Termination Currency
Equivalent of the amount (whether positive or negative) of the
lowest of such Market Quotations (for the avoidance of doubt, the
lowest of such Market Quotations shall be the lowest Market
Quotation of such Market Quotations expressed as a positive
number or, if any of such Market Quotations is expressed as a
negative number, the Market Quotation expressed as a negative
number with the largest absolute value).
(3) If no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is selected by
Party A and accepted by Party B so as to become legally binding
on or before the Latest Settlement Amount Determination Day,
Party B's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for the relevant Terminated
Transaction or group of Terminated Transactions.
(C) For the purpose of clause (4) of the definition of Market
Quotation, Party B shall determine in its sole discretion, acting
in a commercially reasonable manner, whether a Firm Offer is made
in respect of a Replacement Transaction with commercial terms
substantially the same as those of this Agreement (save for the
exclusion of provisions relating to Transactions that are not
Terminated Transactions).
(D) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market Quotations remain
capable of becoming legally binding upon acceptance, Party B
shall be entitled to accept only the lowest of such Market
Quotations.
(E) Party B undertakes to use its reasonable efforts to obtain at
least one Market Quotation before the Latest Settlement Amount
Determination Day. Party B will be deemed to have discharged its
obligations under the preceding sentence if it requests Party A
to obtain Market Quotations, where such request is made in
writing within two Local Business Days after the day on which the
Early Termination Date is designated. If Party B requests Party A
in writing to obtain Market Quotations, Party A shall use its
reasonable efforts to do so before the Latest Settlement Amount
Determination Day.
M-3
(F) Any amount calculated as being due in respect of an Early
Termination Date will be payable in accordance with Section
6(d)(ii), provided that if such payment is owed to Party B, it
will be payable on the day that notice of the amount payable is
given to Party A.
(G) If the Settlement Amount is not determined by reference to a
Market Quotation that has been accepted by Party B and the
Settlement Amount is a negative number, Section 6(e)(i)(3) of
this Agreement shall be deleted in its entirety and replaced with
the following:
Second Method and Market Quotation. If Second Method and Market
Quotation apply, (1) Party B shall pay to Party A an amount equal to
the absolute value of the Settlement Amount in respect of the
Terminated Transactions, (2) Party B shall pay to Party A the
Termination Currency Equivalent of the Unpaid Amounts owing to Party A
and (3) Party A shall pay to Party B the Termination Currency
Equivalent of the Unpaid Amounts owing to Party B, provided that, (i)
the amounts payable under (1), (2) and (3) shall be subject to netting
in accordance with Section 2(c) of this Agreement and (ii)
notwithstanding any other provision of this Agreement, any amount
payable by Party A under (3) shall not be netted off against any
amount payable by Party B under (1).
(m) "Termination Currency" means United States Dollars.
(n) Additional Termination Events. Each of the following shall be an Additional
Termination Event:
(i) First Rating Trigger Event. A First Rating Trigger Event (as defined
in Part 5(j)) has occurred, and Party A has not, within the period of
time prescribed, complied with Part 5(j)(ii) below. For purposes of
this Additional Termination Event, Party A shall be the sole Affected
Party.
(ii) S&P Second Rating Trigger Event. A Second Rating Trigger Event (as
defined in Part 5(j)) with respect to S&P has occurred, and Party A
has not, within 10 days after such event, complied with the
requirements of Part 5(j)(iii) below.
(iii) Xxxxx'x Second Rating Trigger Event. (A) A Second Rating Trigger
Event with respect to Xxxxx'x has occurred, and 30 or more Local
Business Days have elapsed and (B) (i) at least one Eligible
Replacement (as defined in Part 5(j)) has made a Firm Offer to be the
transferee of a transfer to be made in accordance with Part 5(j)(iii)
below and/or (ii) at least one entity with the Acceptable Ratings (as
defined in Part 5(j)) has made a Firm Offer to provide an Eligible
Guarantee in respect of all of Party A's present and future
obligations under this Agreement. For purposes of this Additional
Termination Event, Party A shall be the sole Affected Party.
(iv) Regulation AB. (A) The Depositor still has a reporting obligation with
respect to this Transaction pursuant to Regulation AB and (B) Party A
has not, within 30 days after receipt of a Cap Disclosure Request
complied with the provisions set forth in Part 5(k)(iv) below
(provided that if the significance percentage reaches 10% or 20%, as
applicable, after a Cap Disclosure Request has been made to Party A,
Party A must comply with the provisions set forth in Part 5(k)(iv)
below within 10 Business Days of Party A being informed of the
significance percentage reaching 10% or 20%, as applicable) or has
not, thereafter, complied with the provisions set forth in Part
M-4
5(k)(v) below. For purposes of this Additional Termination Event,
Party A shall be the sole Affected Party.
Part 2. Tax Representations.
(a) Payer Representations For the purpose of Section 3(e) of the Agreement,
Party A will make the following representation and Party B will not make
the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of the
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of the Agreement and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of the Agreement, provided that
it shall not be a breach of this representation where reliance is placed on
clause (ii) and the other party does not deliver a form or document under
Section 4(a)(iii) of the Agreement by reason of material prejudice to its
legal or commercial position.
(b) Payee Representations For the purpose of Section 3(f) of the Agreement,
(i) Party A represents that:
(A) Party A is a tax resident of the United Kingdom;
(B) Party A is a "foreign person" within the meaning of the
applicable U.S. Treasury Regulations concerning information
reporting and backup withholding tax (as in effect on January 1,
2001), unless Party A provides written notice to Party B that it
is no longer a foreign person;
(C) in respect of each Transaction Party A enters into through an
office or discretionary agent in the United States or which
otherwise is allocated (in whole or part) for United States
federal income tax purposes to such United States trade or
business, each payment received or to be received by Party A
under such Transaction (or portion thereof, if applicable) will
be effectively connected with its conduct of a trade or business
in the United States; and
(D) in respect of all other Transactions or portions thereof, no such
payment received or to be received by Party A in connection with
this Agreement is attributable to a trade or business carried on
by it through a permanent establishment in the United States.
(ii) Party B represents that it is the trustee of the supplemental interest
trust with respect to Luminent Mortgage Trust 2007-1, a New York
common law trust.
(c) Definition of "Indemnifiable Tax". Notwithstanding the definition of
"Indemnifiable Tax" in Section 14 of this Agreement, in relation to
payments by Party A, any Tax shall be an Indemnifiable Tax and, in relation
to payments by Party B, no Tax shall be an Indemnifiable Tax.
(d) No gross-up by Party B. Party B shall not have the obligations specified
for X in Section 2(d)(i)(4) or for Y in Section 2(d)(ii).
M-5
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of the Agreement, Party A and Party
B agree to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party Required to Form/Document/Certificate Date by Which to be Delivered
Deliver Document
Party A Any form or document required or reasonably Upon reasonable request.
requested to allow the other party to make payments
under the Agreement without any deduction or
withholding for or on account of any Tax, or with
such deduction or withholding at a reduced rate.
Party B Any form or document required or reasonably (i) Concurrently with the
requested to allow the other party to make payments execution and delivery of this
under the Agreement without any deduction or Confirmation, and (ii) anytime
withholding for or on account of any Tax, or with when the document last delivered
such deduction or withholding at a reduced rate. is incorrect or out-of-date.
(b) Other documents to be delivered and covered by the Section 3(d)
representation are:
Covered by
Party required to Date by which to be Section 3(d)
deliver Form/Document/or Certificate delivered representation
Party A and Party B Incumbency Certificate (or, if Concurrently with the Yes
available the current authorized execution and delivery of this
signature book or equivalent Confirmation unless previously
authorizing documentation) delivered and still in full
specifying the names, titles, force and effect.
authority and specimen signatures
of the persons authorized to
execute the Confirmation which sets
forth the specimen signatures of
each signatory to the Confirmation
signing on its behalf.
M-6
Covered by
Party required to Date by which to be Section 3(d)
deliver Form/Document/or Certificate delivered representation
Party B The Pooling Agreement. Concurrently with the No
execution and delivery of
the Confirmation.
Party A Legal opinion(s) with respect Concurrently with the No
to such party relating to the execution and delivery of
enforceability of the party's the Confirmation.
obligations under this Agreement.
Part 4. Miscellaneous.
(b) Addresses for Notices. For the purposes of Section 12(a) of the Agreement:
Addresses for notices or communications to Party A and to Party B shall be
those set forth on the first page of the Confirmation.
(c) Notice by Facsimile Transmission.
(i) Section 12(a) of the Agreement is amended by adding in the third line
thereof after the phrase "messaging system" and before the ")" the
words "; provided, however, any such notice or other communication may
be given by facsimile transmission (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a
transmission report generated by the sender's facsimile machine)".
(ii) Section 12(a)(ii) of the Agreement is deleted in its entirety.
(d) Process Agent. For the purpose of Section 13(c) of the Agreement:
Party A appoints as its Process Agent: none.
Party B appoints as its Process Agent: none.
(d) Offices. With respect to Party A, the provisions of Section 10(a) of the
Agreement will apply.
(e) Multibranch Party. For the purpose of Section 10(c) of the Agreement:
Party A is a Multibranch Party.
Party B is not a Multibranch Party.
(f) Calculation Agent. The Calculation Agent is Party A.
(g) Credit Support Document. Details of any Credit Support Document for Party A
and Party B: The ISDA Credit Support Annex (New York law), dated as of the
date hereof, between Party A and Party B, and such other collateralization
agreement or credit support arrangement provided for under the terms of any
Confirmation and Transaction evidenced thereby, together with any document
or agreement that by its terms secures or otherwise supports the parties'
obligations under a Transaction heretofore or hereafter entered into
M-7
between the parties. With respect to Party B, such credit support document
is solely in respect of Party B's obligations under Paragraph 3(b) of the
Credit Support Annex.
(h) Credit Support Provider.
Credit Support Provider means in relation to Party A: the guarantor under
an Eligible Guarantee, if any.
Credit Support Provider means in relation to Party B: none.
(i) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
conflicts of law doctrine other than New York General Obligations Law
Sections 5-1401 and 5-1402).
(j) Netting of Payments. Subparagraph (ii) of Section 2(c) of the Agreement
will apply to the Transaction evidenced by the Confirmation.
(k) Affiliates. Party B shall be deemed to not have any Affiliates for purposes
of this Transaction.
Part 5. Other Provisions.
(e) Additional Representation. Section 3(a) of the Agreement shall be amended
to include the following additional representations after paragraph
3(a)(v):
"(vi) Eligible Contract Participant, etc. It is an "eligible contract
participant" as defined in Section 1a(12) of the U.S. Commodity Exchange
Act (7 U.S.C. 1a), as amended by the Commodity Futures Modernization Act of
2000 and the Transaction evidenced hereby has been the subject of
individual negotiations and is intended to be exempt from, or otherwise not
subject to regulation thereunder."
(l) Waiver of Right to Trial by Jury. Each party hereby irrevocably waives any
and all rights to trial by jury in any legal proceeding arising out of or
relating to this Agreement or any Transaction hereunder.
(m) Absence of Litigation. In Section 3(c) of the Agreement the words "or any
of its Affiliates" shall be deleted.
(n) Fully-paid Party Protected.
Notwithstanding the terms of Sections 5 and 6 of the Agreement, if Party B
has satisfied its payment obligations under Section 2(a)(i) of the
Agreement, then unless Party A is required pursuant to appropriate
proceedings to return to Party B or otherwise returns to Party B upon
demand of Party B any portion of such payment, (a) the occurrence of an
event described in Section 5(a) of the Agreement with respect to Party B
shall not constitute an Event of Default or Potential Event of Default with
respect to Party B as the Defaulting Party and (b) Party A shall be
entitled to designate an Early Termination Date pursuant to Section 6 of
the Agreement only as a result of a Termination Event set forth in either
Section 5(b)(i) or Section 5(b)(ii) of the Agreement with respect to Party
A as the Affected Party or Section 5(b)(iii) of the Agreement with respect
to Party A as the Burdened Party. For purposes of the Transaction to which
this Confirmation relates, Party B's only obligation under Section 2(a)(i)
of the Agreement is to pay the Fixed Amount on the Fixed Rate Payer Payment
Date.
M-8
(o) Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this
letter agreement is executed and delivered by Xxxxx Fargo Bank, N.A.
("Xxxxx"), not individually or personally but solely as the indenture
trustee, in the exercise of the powers and authority conferred and vested
in it, (b) the representations, undertakings and agreements herein are made
and intended not as personal representations, undertakings and agreements
by Xxxxx but are made and intended for the purpose of binding only the
Supplemental Interest Trust, (c) nothing herein contained shall be
construed as creating any personal or individual liability on Xxxxx to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties who are
signatories to this letter agreement and by any person claiming by, through
or under such parties, and (d) under no circumstances shall Xxxxx be
personally liable for the payment of any indebtedness or expenses of the
Supplemental Interest Trust or be personally liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Supplemental Interest Trust under this letter agreement.
(p) Proceedings. Party A shall not institute against or cause any other person
to institute against, or join any other person in instituting against the
Depositor, Party B or the Issuing Entity any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any federal or state bankruptcy, dissolution or similar law, for a
period of one year and one day following indefeasible payment in full of
the Class I Certificates, provided that nothing herein shall preclude, or
be deemed to estop Party A from taking any action in any case or proceeding
voluntarily filed or commenced by or on behalf of Party B or in any
involuntary case or proceeding after it has been commenced.
(q) Recording of Conversations. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties
and (ii) agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel of it.
(r) No Set-off. Notwithstanding any provision of this Agreement or any other
existing or future agreement, each party irrevocably waives any and all
rights it may have to set-off, net recoup or otherwise withhold or suspend
or condition payment or performance of any obligation between it and the
other party hereunder against any obligation between it and the other party
under any other agreements. The provisions for Set-off set forth in Section
6(e) of the Agreement shall not apply for purposes of this Transaction.
(s) Sole Transaction. For purposes of Section 1(c) of the Agreement, this
Transaction shall be the sole Transaction under the Agreement.
(t) Rating Agency Downgrade.
(i) For purposes of this Part 5(i), the following definitions apply:
An entity has "Acceptable Ratings" if (x) its short-term unsecured and
unsubordinated debt is rated at least "A-1" by S&P (or, if it does not have
a short-term unsecured and unsubordinated debt rating from S&P, its
long-term unsecured and unsubordinated debt is rated at least "A+" by S&P),
and (y) its long-term unsecured and unsubordinated debt is rated at least
A3 or its short-term unsecured and unsubordinated debt is rated at least
"Prime-2" (or if it does not have a short-term unsecured and unsubordinated
debt rating from Moody's, its long-term unsecured and unsubordinated debt
is rated at least A3).
M-9
"Eligible Guarantee" means an unconditional and irrevocable guarantee that
is provided by a guarantor with Acceptable Ratings as principal debtor
rather than surety and is directly enforceable by Party B, where either (A)
a law firm has given a legal opinion confirming that none of the
guarantor's payments to Party B under such guarantee will be subject to
withholding for tax or (B) such guarantee provides that, in the event that
any of such guarantor's payments to Party B are subject to withholding for
tax, such guarantor is required to pay such additional amount as is
necessary to ensure that the net amount actually received by Party B (free
and clear of any withholding tax) will equal the full amount Party B would
have received had no such withholding been required.
"Eligible Replacement" means an entity (A) with the Acceptable Ratings or
(B) whose present and future obligations owing to Party B are guaranteed
pursuant to an Eligible Guarantee.
A "First Rating Trigger Event" shall occur with respect to Party A (or any
applicable credit support provider), if (x) its short-term unsecured and
unsubordinated debt ceases to be rated at least "A-1" by S&P (or, if Party
A does not have a short-term unsecured and unsubordinated debt rating from
S&P, its long-term unsecured and unsubordinated debt ceases to be rated at
least "A+" by S&P), or (y)(a) its long-term unsecured and unsubordinated
debt ceases to be rated at least "A2" by Moody's or its short-term
unsecured and unsubordinated debt ceases to be rated at least "Prime-1" by
Moody's, or (b) if it does not have a short-term unsecured and
unsubordinated debt rating from Moody's, its long-term unsecured and
unsubordinated debt ceases to be rated at xxxxx "X0" by Xxxxx'x.
"Rating Agency Condition" means, with respect to any particular proposed
act or omission to act hereunder, that the party acting or failing to act
must consult with each of the Rating Agencies then providing a rating of
the Class I Certificates and receive from each such Rating Agency a prior
written confirmation that the proposed action or inaction would not cause a
downgrade or withdrawal of the then-current rating of the Class I
Certificates.
A "Second Rating Trigger Event" shall occur with respect to Party A (or any
applicable credit support provider), if (A) Party A's long-term unsecured
and unsubordinated debt ceases to be rated at least "BBB-" or Party A's
short-term unsecured and unsubordinated debt ceases to be rated at least
"A-3" or is withdrawn by S&P or (B) Party A's long-term unsecured and
unsubordinated debt ceases to be rated at least A3 or Party A's short-term
unsecured and unsubordinated debt ceases to be rated at least "Prime-2" (or
if Party A does not have a short-term unsecured and unsubordinated debt
rating from Moody's, its long-term unsecured and unsubordinated debt ceases
to be rated at least A3).
(ii) If a First Rating Trigger Event occurs with respect to Party A (or any
applicable Credit Support Provider), then (unless, within 30 days of
such First Rating Trigger Event, each of Standard and Poor's, a
Division of XxXxxx-Xxxx Companies, Inc. ("S&P"), and Xxxxx'x Investors
Service, Inc. ("Moody's) (each a "Rating Agency") has reconfirmed its
rating of the Class I Certificates which was in effect immediately
prior to such First Rating Trigger Event) Party A shall, within 30
days of such First Rating Trigger Event, at its own expense, (A)
obtain an Eligible Guarantee in respect of all of Party A's present
and future obligations under this Agreement, subject to the Rating
Agency Condition in respect of S&P only (B) transfer all or
substantially all of its rights and obligations with respect to this
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Agreement to an Eligible Replacement (provided that Party B shall
determine in its sole discretion, acting in a commercially reasonable
manner, whether or not a transfer relates to all or substantially all
of Party A's rights and obligations under this Agreement), subject to
the Rating Agency Condition in respect of S&P only or (C) post
collateral in accordance with the Credit Support Annex to this
Agreement, subject to the Rating Agency Condition in respect of S&P
only.
(iii) If a Second Rating Trigger Event occurs with respect to Party A (or
any applicable Credit Support Provider), then Party A will at its own
cost use commercially reasonable efforts to, as soon as reasonably
practicable (or, in the event of a Second Rating Trigger Event with
respect to S&P, within ten Business Days), either (A) obtain an
Eligible Guarantee in respect of all of Party A's present and future
obligations under this Agreement, subject to the Rating Agency
Condition, or (B) transfer all or substantially all of its rights and
obligations with respect to this Agreement to an Eligible Replacement
(provided that Party B shall determine in its sole discretion, acting
in a commercially reasonable manner, whether or not a transfer relates
to all or substantially all of Party A's rights and obligations under
this Agreement), subject to the Rating Agency Condition.
(u) Compliance with Regulation AB.
(i) Party A acknowledges that for so long as there are reporting
obligations with respect to this Transaction under Regulation AB
("Regulation AB") under the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended (the "1934 Act"), the
Depositor is required under Regulation AB, to disclose certain
information set forth in Regulation AB regarding Party A or its group
of affiliated entities, if applicable, depending on the aggregate
"significance percentage" of this Agreement and any other derivative
contracts between Party A or its group of affiliated entities, if
applicable, and Party B with respect to the Group I Mortgage Loans, as
calculated from time to time in accordance with Item 1115 of
Regulation AB.
(ii) Subject to the provisions of clause (iii) below, and so long as there
are reporting obligations with respect to this Transaction under
Regulation AB, if the Depositor determines, reasonably and in good
faith, that the aggregate significance percentage of this Agreement
and the swap confirmation (reference number D16175038) has increased
to nine (9) percent, then the Depositor or Party B may request from
Party A (such request, a "Cap Disclosure Request") on a Business Day
after the date of such determination the same information set forth in
Item 1115(b) of Regulation AB (such requested information, subject to
the last sentence of this paragraph, the "Cap Financial Disclosure")
that would have been required if the significance percentage had in
fact increased to ten (10) percent. The Depositor or any of its agents
shall provide Party A with the calculations and any other information
reasonably requested by Party A with respect to the Depositor's
determination that led to the Cap Disclosure Request. The parties
hereto further agree that the Cap Financial Disclosure provided to
meet the Cap Disclosure Request may be, solely at Party A's option,
either the information set forth in Item 1115(b)(1) or Item 1115(b)(2)
of Regulation AB.
(iii) So long as there are reporting obligations with respect to this
Transaction under Regulation AB, if the Depositor determines,
reasonably and in good faith, that the aggregate significance
M-11
percentage of this Agreement and the swap confirmation (reference
number D16175038) has increased to nineteen (19) percent, then the
Depositor or Party B may make a Cap Disclosure Request to Party A on a
Business Day after the date of such determination for the Cap
Financial Disclosure that would have been required if the significance
percentage had in fact increased to twenty (20) percent. The Depositor
or any of its agents shall provide Party A with the calculations and
any other information reasonably requested by Party A with respect to
the Depositor's determination that led to the Cap Disclosure Request.
(iv) Upon the occurrence of a Cap Disclosure Request, Party A, at its own
expense, shall (i) provide the Depositor and Party B with the Cap
Financial Disclosure, (ii) subject to Rating Agency Confirmation,
secure a Eligible Replacement to replace Party A as party to this
Agreement on terms substantially similar to this Agreement which
entity is able to, and does, provide the Cap Financial Disclosure or
(iii) subject to Rating Agency Confirmation, obtain a guaranty of
Party A's obligations under this Agreement from an affiliate of Party
A that is able to provide the Cap Financial Disclosure, such that
disclosure provided in respect of the affiliate will satisfy any
disclosure requirements applicable to Party A, and cause such
affiliate to provide Cap Financial Disclosure. For purposes of clause
(ii) above, the parties agree that National Westminster Bank Plc
("NatWest") shall be an acceptable replacement for Party A, so long as
NatWest satisfies the conditions specified in such clause (ii). If
permitted by Regulation AB, any required Cap Financial Disclosure may
be provided by incorporation by reference from reports filed pursuant
to the 1934 Act.
(v) Party A agrees that, if it responds to a Cap Disclosure Request by
providing Cap Financial Disclosure, then, for so long as the Depositor
has reporting obligations under the 1934 Act with respect to this
Transaction, it will provide any interim updates to Cap Financial
Disclosure within 5 Business Days following the availability thereof
(but in no event more than six months after the end of Party A's
fiscal year for any annual update). If permitted by Regulation AB, any
such update may be provided by incorporation by reference from reports
filed pursuant to the 1934 Act.
(v) Severability. If any term, provision, covenant, or condition of the
Agreement, or the application thereof to any other party or circumstance,
shall be held invalid or unenforceable (in whole or in part) for any
reason, the remaining terms, provisions, covenants, and conditions hereof
shall continue in full force and effect as if the Agreement has been
executed with the invalid or unenforceable provision portion eliminated, so
long as the Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter of
the Agreement and the deletion of such portion of the Agreement will not
substantially impair the respective benefits or expectations of the
parties. The parties shall endeavor to engage in good faith negotiations to
replace any invalid or unenforceable term, provision, covenant or
conditions with a valid or enforceable term, provision, covenant or
condition, the economic effect of which comes as close as possible to that
of the invalid or unenforceable term, provision, covenant or condition.
(w) Counterparts. This letter agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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(x) USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to
the requirements of the USA PATRIOT ACT (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies Party B, which information
includes the name and address of Party B and other information that will
allow Party A to identify Party B in accordance with the Act.
(y) Transfers.
(i) Section 7 is hereby amended to read in its entirety as follows:
"Subject to Section 6(b)(ii), Part 5(j) and Part 5(k), neither Party A
nor Party B is permitted to assign, novate or transfer (whether by way
of security or otherwise) as a whole or in part any of its rights,
obligations or interests under the Agreement or any Transaction
without (a) the prior written consent of the other party and (b)
satisfaction of the Rating Agency Condition with respect to S&P."
(ii) If an Eligible Replacement has made a Firm Offer (which remains an
offer that will become legally binding upon acceptance by Party B) to
be the transferee pursuant to a Permitted Transfer, Party B shall, at
Party A's written request and at Party A's expense, take any
reasonable steps required to be taken by Party B to effect such
transfer.
"Permitted Transfer" means a transfer by novation by Party A to a
transferee (the "Transferee") of all, but not less than all, of Party
A's rights, liabilities, duties and obligations under this Agreement,
with respect to which transfer each of the following conditions is
satisfied: (a) the Transferee is an Eligible Replacement that is a
recognized dealer in interest rate caps organized under the laws of
the United States of America or a jurisdiction located in the United
States of America (or another jurisdiction reasonably acceptable to
Party B), (b) as of the date of such transfer neither Party B nor the
Transferee would be required to withhold or deduct on account of Tax
from any payments under this Agreement, (c) an Event of Default or
Termination Event would not occur as a result of such transfer, (d)
Party B has consented in writing to the transfer, such consent not to
be unreasonably withheld, (e) the transfer would not give rise to a
taxable event or any other adverse Tax consequences to Party B or its
interest holders, as determined by Party B in its sole discretion, (f)
pursuant to a written instrument (the "Transfer Agreement"), the
Transferee acquires and assumes all rights and obligations of Party A
under the Agreement and the relevant Transaction, (g) Party B shall
have determined, in its sole discretion, acting in a commercially
reasonable manner, that such Transfer Agreement is effective to
transfer to the Transferee all, but not less than all, of Party A's
rights and obligations under the Agreement and all relevant
Transactions; (h) Party A will be responsible for any costs or
expenses incurred in connection with such transfer (including any
replacement cost of entering into a replacement transaction); (i)
Moody's has been given prior written notice of such transfer and the
Rating Agency Condition is satisfied with respect to S&P; and (j) such
transfer otherwise complies with the terms of the Pooling Agreement.
(z) Amendment. Notwithstanding any provision to the contrary in this Agreement,
no amendment, supplement or other modification of either this Agreement or
any Transaction under this Agreement shall be permitted by either party
unless each of the Rating Agencies has been provided prior written notice
of the same and S&P confirms in writing (including by facsimile
transmission) that it will not downgrade, withdraw or otherwise modify its
then-current ratings of the Class I Certificates.
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(aa) Non-Recourse. Notwithstanding any provision herein, the obligations of
Party B hereunder are limited recourse obligations of Party B, payable
solely from the Supplemental Interest Trust and the proceeds thereof, in
accordance with the terms of the Pooling Agreement. In the event that the
Supplemental Interest Trust and the proceeds thereof, should be
insufficient to satisfy all claims outstanding and following the
realization of the account held by the Supplemental Interest Trust and the
proceeds thereof, any claims against or obligations of Party B under this
Agreement still outstanding shall be extinguished and thereafter not
revive.
(bb) Third Party Beneficiary. The Depositor and the Sponsor shall each be an
express third party beneficiary of this Agreement with respect to Party A's
undertakings under Part 5(k) only.
M-14
Party A - The Royal Bank of Scotland plc
Party B - Xxxxx Fargo Bank, National Association, not in its individual capacity
but solely as trustee of the supplemental interest trust with respect to
Luminent Mortgage Trust 2007-1
For the avoidance of doubt, and notwithstanding anything to the contrary that
may be contained in the Agreement, this Credit Support Annex shall relate solely
to the Transactions documented in the Confirmations dated January 25, 2007,
between Party A and Party B with reference numbers D16175038 and
IRG16175012.2A.2B.
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in this
Annex includes the following additional obligations:
With respect to Party A: Not applicable.
With respect to Party B: Not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a),
except that (I) the words "upon a demand made by the Secured
Party on or promptly following a Valuation Date" shall be deleted
and replaced by the words "on each Valuation Date" and (II) the
sentence beginning "Unless otherwise specified in Paragraph 13"
and ending "(ii) the Value as of that Valuation Date of all
Posted Credit Support held by the Secured Party." shall be
deleted and replaced by the following:
"The "Delivery Amount" applicable to the Pledgor for any Valuation
Date will equal the greatest of
(1) the amount by which (a) the S&P Collateral Amount for such
Valuation Date exceeds (b) the S&P Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party,
(2) the amount by which (a) the Moody's First Collateral Amount for
such Valuation Date exceeds (b) the Moody's First Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party, and
(3) the amount by which (a) the Moody's Second Collateral Amount for
such Valuation Date exceeds (b) the Moody's Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party."
(B) "Return Amount" has the meaning specified in Paragraph 3(b),
except that the sentence beginning "Unless otherwise specified in
Paragraph 13" and ending "(ii) the Credit Support Amount." shall
be deleted and replaced by the following:
"The "Return Amount" applicable to the Secured Party for any Valuation
Date will equal the least of
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(1) the amount by which (a) the S&P Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party exceeds (b) the
S&P Collateral Amount for such Valuation Date,
(2) the amount by which (a) the Moody's First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured Party
exceeds (b) the Moody's First Collateral Amount for such Valuation
Date, and
(3) the amount by which (a) the Moody's Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party exceeds (b) the Moody's Second Collateral Amount for such
Valuation Date."
(C) "Credit Support Amount" shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any
Valuation Date, reference shall be made to the S&P Collateral
Amount, the Moody's First Collateral Amount, or the Moody's
Second Collateral Amount, in each case for such Valuation Date,
as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B), above.
The "S&P Collateral Amount" means zero, provided that for so long
as a First Rating Trigger Event with respect to S&P has occurred
and is continuing for at least 30 days or a Second Rating Trigger
Event with respect to S&P has occurred and is continuing, the S&P
Collateral Amount shall equal the sum of (I) Party B's Exposure
and (II) the sum, over all Transactions, of the product
S&P Volatility Buffer*Hedge Notional, where
"Hedge Notional" means the notional amount of the relevant
Transaction for the relevant Calculation Period.
"S&P Volatility Buffer" means, for any Transaction, the related
percentage set forth in the following table.
_______________________________________________________________________________________________________
The higher of the S&P short-term Remaining Remaining Remaining Remaining
credit rating of (i) Party A and Weighted Weighted Weighted Weighted Average
(ii) the Credit Support Provider Average Average Maturity Average Maturity
of Party A, if applicable Maturity up to 5 years Maturity up to 30 years
up to 3 years up to 10 years
_______________________________________________________________________________________________________
At least "A-2" 2.75% 3.25% 4.00% 4.75%
_______________________________________________________________________________________________________
"A-3" 3.25% 4.00% 5.00% 6.25%
_______________________________________________________________________________________________________
"BB+" or lower 3.50% 4.50% 6.75% 7.50%
_______________________________________________________________________________________________________
The "Moody's First Collateral Amount" means zero, provided that
for so long as (A) a First Rating Trigger Event with respect to
Moody's has occurred and is continuing and either (i) such event
existed at the time this Annex was executed or assigned by Party
A to another party or (ii) at least 30 Local Business Days have
elapsed since such event occurred and (B)(i) no Second Rating
Trigger Event with respect to Moody's has occurred and is
continuing or (ii) less than 30 Local Business Days have elapsed
since the occurrence of a Second Rating Trigger Event with
respect to Moody's, then the Moody's First Collateral Amount
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shall equal the sum of (I) Party B's Exposure and (ii) the sum,
over all Transactions, of
Min [15*DV01, 2%*Hedge Notional]; and
The "Moody's Second Collateral Amount" means zero, provided that,
for so long as a Second Rating Trigger Event with respect to
Moody's has occurred and has been continuing for 30 or more Local
Business Days, then the Moody's Second Collateral Amount shall
equal
Max [0, Next Payment, Party B's Exposure + Additional Amount], where
Next Payment = the sum of the net payments due from Party A to
Party B (if any) on the next payment date for all Transactions.
Addition Amount = the sum, over all Transactions of
(a) with respect to each Transaction that is a single
currency swap with a fixed notional amount for each
Calculation Period, Min [50*DV01, 8%* Aggregate Hedge
Notional], and
(b) with respect to each Transaction that is not a
single-currency swap with a fixed notional amount for
each Calculation Period, Min [65*DV01, 10%* Aggregate
Hedge Notional], where
DV01 = Party A's estimate of the change in the mid-market value
of Party B's Exposure resulting from a one basis point change in
the swap curve, and
Aggregate Hedge Notional = the aggregate of the applicable
notional amounts of all Transactions for the relevant Calculation
Period.
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(ii) Eligible Collateral. The following items will qualify
as "Eligible Collateral" for the party specified:
Collateral Type S&P Valuation Moody's Valuation Moody's Valuation
Percentage Percentage at First Percentage at Second
Trigger Rating Event Trigger Rating Event
(A) Cash, in the form of USD 100% 100% 100%
(B) Negotiable Debt Obligations (as defined below) 98.9% 100% 100%
issued by the Government of the United States of
America having a remaining maturity of not more
than one year.
(C) Negotiable Debt Obligations issued by the 98.0% 100% 99%
Government of the United States of America having a
remaining maturity of more than one but not more
than two years.
(D) Negotiable Debt Obligations issued by the 97.4% 100% 98%
Government of the United States of America having a
remaining maturity of more than two but not more
than three years.
(E) Negotiable Debt Obligations issued by the 95.5% 100% 97%
Government of the United States of America having a
remaining maturity of more than three but not more
than five years.
(F) Negotiable Debt Obligations issued by the 93.7% 100% 96%
Government of the United States of America having a
remaining maturity of more than five but not more
than seven years.
(G) Negotiable Debt Obligations issued by the 92.5% 100% 94%
Government of the United States of America having a
remaining maturity of more than seven but not more
than ten years.
(H) Negotiable Debt Obligations issued by the 91.1% 100% 90%
Government of the United States of America having a
remaining maturity of more than ten but not more
than twenty years.
(I) Negotiable Debt Obligations issued by the 88.6% 100% 88%
Government of the United States of America having a
remaining maturity of more than twenty years.
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As used above, the following terms have the indicated meanings:
"Negotiable Debt Obligation" means a debt obligation in a stated
principal amount with a non-variable fixed maturity, which cannot
be redeemed by its issuer before its maturity nor put to the
issuer for redemption before its maturity. It must bear interest
on its stated principal amount at a non-variable fixed rate until
maturity (or, in the case of an obligation with an original
maturity of less than one year, bear no interest at all).
(iii) Other Eligible Support. The following items will qualify as
"Other Eligible Support" for the party specified: Not Applicable.
(iv) Thresholds.
(A) "Independent Amount" means with respect to Party A: Not
Applicable.
"Independent Amount" means with respect to Party B: Not
Applicable.
(B) "Threshold" means with respect to Party A, infinity,
provided that for so long as (1) a First Rating Trigger
Event with respect to Moody's has occurred and is continuing
and either (i) such First Rating Trigger Event existed at
the time this Annex was executed or (ii) at least 30 Local
Business days have elapsed since such First Rating Trigger
Event occurred, or (B) a First Rating Trigger Event with
respect to S&P has occurred and is continuing for at least
30 days or a Second Rating Trigger Event with respect to S&P
has occurred and is continuing, the Threshold with respect
to Party A shall be zero.
"Threshold" means with respect to Party B, infinity.
(C) "Minimum Transfer Amount" means with respect to Party A: USD
100,000, and with respect to Party B: USD 100,000, provided,
that if the aggregate principal balance of the Class I
Certificates rated by S&P ceases to be more than USD
50,000,000, the "Minimum Transfer Amount" shall be USD
50,000 and provided further that if a Party is a Defaulting
Party, or the Affected Party under an Additional Termination
Event, the Minimum Transfer Amount for such party shall be
zero.
(D) Rounding. The Delivery Amount and the Return Amount will be
rounded up and down, respectively, to the nearest integral
multiple of $10,000.
(c) (i) External Verification. Notwithstanding anything to the contrary in the
definitions of Valuation Agent or Valuation Date, at any time at which
Party A (or, to the extent applicable, its Credit Support Provider) does
not have a long-term unsubordinated and unsecured debt rating of at least
"BBB+" from S&P, the Valuation Agent shall (A) calculate the Secured
Party's Exposure and the S&P Value (as defined below) of Posted Credit
Support on each Valuation Date based on internal marks and (B) verify such
calculations with external marks monthly by obtaining on the last Local
Business Day of each calendar month two external marks for each Transaction
to which this Annex relates and for all Posted Credit Support; such
verification of the Secured Party's Exposure shall be based on the higher
of the two external marks. Each external xxxx in respect of a Transaction
shall be obtained from an independent Reference Market-maker that would be
eligible and willing to enter into such Transaction in the absence of the
current derivative provider, provided that an external xxxx xxx not be
M-19
obtained from the same Reference Market-maker more than four times in any
12-month period. The Valuation Agent shall obtain these external marks
directly or through an independent third party, in either case at no cost
to Party B. The Valuation Agent shall calculate on each Valuation Date (for
purposes of this paragraph, the last Local Business Day in each calendar
month referred to above shall be considered a Valuation Date) the Secured
Party's Exposure based on the greater of the Valuation Agent's internal
marks and the external marks received. If the S&P Value on any such
Valuation Date of all Posted Credit Support then held by the Secured Party
is less than the S&P Collateral Amount on such Valuation Date (in each case
as determined pursuant to this paragraph), Party A shall, within three
Local Business Days of such Valuation Date, Transfer to the Secured Party
Eligible Credit Support having an S&P Value as of the date of Transfer at
least equal to such deficiency.
(ii) Notice to S&P. At any time at which Party A (or, to the extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least "BBB+" from S&P, the
Valuation Agent shall provide to S&P not later than the Notification Time
on the Local Business Day following each Valuation Date its calculations of
the Secured Party's Exposure and the S&P Value of any Eligible Credit
Support or Posted Credit Support for that Valuation Date. The Valuation
Agent shall also provide to S&P any external marks received pursuant to the
preceding paragraph.
(d) Valuation and Timing.
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means: any Local Business Day.
(iii) "Valuation Time" means the close of business on the Local Business
Day before the Valuation Date or date of calculation, as applicable;
provided, however, that the calculations of Value and Exposure will be made
as of approximately the same time on the same date.
(iv) "Notification Time" means 9:00 a.m., New York time, on a Local
Business Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. For purposes
of Paragraph 8(a), each Termination Event will be a "Specified Condition"
for the Pledgor, if the Secured Party has designated an Early Termination
Date in connection with the Termination Event. For all other purposes of
this Annex, each Termination Event specified below with respect to a party
will be a "Specified Condition" for that party (that party being the
Affected Party if the Termination Event occurs with respect to that party):
Termination Event Party A Party B
Illegality [N/A] [N/A]
Tax Event [N/A] [N/A]
Tax Event Upon Merger [N/A] [N/A]
Credit Event Upon Merger [N/A] [N/A]
Additional Termination Event(s) [X] [X]
M-20
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. The Pledgor shall obtain the Secured Party's consent for any
substitution pursuant to Paragraph 4(d). Such consent shall not be
unreasonably withheld.
(iii) Additional Conditions Precedent. Paragraph 4(a) of this Annex is
hereby amended to include a new subsection: "(iii) no deficiency exists in
the Value of the Collateral at the time of Substitution."
(f) Dispute Resolution.
(i) "Resolution Time" means 9:00 a.m., New York time, on the Local Business
Day following the date on which the notice of the dispute is given by the
Disputing Party to the other party.
(ii) Value. For the purposes of Paragraphs 5(i)(c) and 5(ii), the Value of
the outstanding Credit Support Amount or of any transfer of Eligible Credit
Support or Posted Credit Support other than Cash (the "Non-Cash Credit
Support") will be calculated as follows: the product of (A) appropriate
Valuation Percentage and (B) the sum of (I) the mean of the bid prices
quoted on such date by any three principal market makers for such Non-Cash
Credit Support chosen by the Disputing Party, or if three such quotations
are not available from principal market makers for such date, using two
such quotations, or if only one such quotation is obtained using such
quotation, or if no quotations are available using the mean of such bid
prices as of the day, next preceding such date, on which one or more of
such quotations were available, plus (II) the accrued interest on such
Non-Cash Credit Support (except to the extent Transferred to a party
pursuant to this Agreement or included in the applicable price referred to
in subparagraph (A) of this Clause) as of such date.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. Party B or its
Custodian will be entitled to hold Posted Collateral pursuant to Paragraph
6(b); provided that the following conditions applicable to it are
satisfied:
(A) In the event that Party B holds Posted Collateral, Party B is not
a Defaulting Party or an Affected Party under an Additional
Termination Event.
(B) Posted Collateral may be held only in the following jurisdiction:
New York and Minnesota.
(C) In the event that the Custodian holds Posted Collateral, the
long-term unsubordinated unsecured debt of the Custodian is rated
at least A+ by Standard & Poors, a division of The XxXxxx-Xxxx
Companies, Inc. (or any successor thereto) and at least A1 by
Xxxxx'x Investors Service, Inc. (or any successor thereto).
Initially, the Custodian for Party B is Xxxxx Fargo Bank, N.A.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c)(i) shall
not apply.
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(h) Distributions and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be the weighted average rate of
interest earned by the Secured Party in respect of Posted Collateral in the
form of Cash.
(ii) Transfer of Interest Amount. The transfer of the Interest Amount will
be made on the second Local Business Day of each calendar month in respect
of the Interest Amount for the preceding calendar month, provided, however,
that the obligation of Party B to Transfer any Interest Amount to Party A
shall be limited to the extent that Party B has earned and received such
funds and such funds are available to Party B.
(iii) Alternative to Interest Amount. Not applicable.
(i) Additional Representation(s). Not applicable.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted Support
means: Not applicable.
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support means: Not applicable.
(k) Demands and Notices.
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement, unless otherwise
specified here:
Party A:
Global Collateral Support Unit
The Royal Bank of Scotland plc, Financial Markets
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Facsimile: 44.207 000 0000
Telephone: 44.207 000 0000
With a copy to:
000 Xxxxxxxxx Xxxx
Xxxxxxxxx XX 00000
Attn: Derivatives Settlements
Telephone: 000-000-0000 (Xxx Xxxxx)
000-000-0000 (Operations main number)
Facsimile: 000-000-0000
M-22
Party B:
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: Luminent 2007-1
Fax: (000) 000-0000
or for overnight delivery,
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Luminent 2007-1
(l) Address for Transfers. All transfers hereunder will be made to the account
or accounts most recently notified by each party to the other.
(m) Other Provisions.
(i) Single Transferor and Single Transferee. Party A and Party B hereby
agree that, notwithstanding anything to the contrary in this Annex, (a) the
term "Secured Party" as used in this Annex means only Party B, (b) the term
"Pledgor" as used in this Annex means only Party A, (c) only Party A makes
the pledge and grant in Paragraph 2, the acknowledgement in the final
sentence of Paragraph 8(a) and the representations in Paragraph 9.
(ii) Events of Default. Paragraph 7 will not apply to cause any Event of
Default to exist with respect to Party B except that Paragraph 7(i) will
apply to Party B solely in respect of Party B's obligations under Paragraph
3(b) of the Credit Support Annex. Notwithstanding anything to the contrary
in Paragraph 7, any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the Credit
Support Annex shall only be an Event of Default if (A) Second Rating
Trigger Event with respect to S&P has occurred and been continuing or (B) a
Second Rating Trigger Event with respect to Moody's has occurred and been
continuing for 30 or more Local Business Days and such failure is not
remedied on or before the third Local Business Day after notice of such
failure is given to Party A.
(iii) Form of Annex. Party A and Party B hereby agree that the text of
Paragraphs 1 through 12, inclusive, of this Annex is intended to be the
printed form of ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject to New York Law Only version) as published and copyrighted in 1994
by the International Swaps and Derivatives Association, Inc.
(iv) Expenses. Notwithstanding anything to the contrary in Paragraph 10,
the Pledgor will be responsible for, and will reimburse the Secured Party
for, all transfer and other taxes and other costs involved in any Transfer
of Eligible Collateral.
(v) Withholding. Paragraph 6(d)(ii) is hereby amended by inserting
immediately after "the Interest Amount" in the fourth line thereof the
words "less any applicable withholding taxes."
(vi) "Local Business Day" means, for purposes of the Credit Support Annex,
any day on which (A) commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York and
the location of Party A, Party B and any Custodian, and (B) in relation to
a Transfer of Eligible Collateral, any day on which the clearance system
agreed between the parties for the delivery of Eligible Collateral is open
for acceptance and execution of settlement instructions (or in the case of
a Transfer of Cash or other Eligible Collateral for which delivery is
M-23
contemplated by other means a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign deposits) in
New York and the location of Party A, Party B and any Custodian.
(vii) Calculation of Value. Paragraph 4(c) is hereby amended by deleting
the word "Value" and inserting in lieu thereof "S&P Value, Moody's First
Trigger Value, Moody's Second Trigger Value". Paragraph 4(d)(ii) is hereby
amended by (A) deleting the words "a Value" and inserting in lieu thereof
"an S&P Value, Moody's First Trigger Value, and Moody's Second Trigger
Value" and (B) deleting the words "the Value" and inserting in lieu thereof
"S&P Value, Moody's First Trigger Value, and Moody's Second Trigger Value".
Paragraph 5 (flush language) is hereby amended by deleting the word "Value"
and inserting in lieu thereof "S&P Value, Moody's First Trigger Value, or
Moody's Second Trigger Value". Paragraph 5(i) (flush language) is hereby
amended by deleting the word "Value" and inserting in lieu thereof "S&P
Value, Moody's First Trigger Value, and Moody's Second Trigger Value".
Paragraph 5(i)(C) is hereby amended by deleting the word "the Value, if"
and inserting in lieu thereof "any one or more of the S&P Value, Moody's
First Trigger Value, or Moody's Second Trigger Value, as may be". Paragraph
5(ii) is hereby amended by (1) deleting the first instance of the words
"the Value" and inserting in lieu thereof "any one or more of the S&P
Value, Moody's First Trigger Value, or Moody's Second Trigger Value" and
(2) deleting the second instance of the words "the Value" and inserting in
lieu thereof "such disputed S&P Value, Moody's First Trigger Value, or
Moody's Second Trigger Value". Each of Paragraph 8(b)(iv)(B) and Paragraph
11(a) is hereby amended by deleting the word "Value" and inserting in lieu
thereof "least of the S&P Value, Moody's First Trigger Value, and Moody's
Second Trigger Value".
(viii) "Moody's First Trigger Value" means, on any date and with respect to
any Eligible Collateral other than Cash, the bid price obtained by the
Valuation Agent multiplied by the Moody's First Trigger Valuation
Percentage for such Eligible Collateral set forth in Paragraph 13(b)(ii).
(ix) "Moody's Second Trigger Value" means, on any date and with respect to
any Eligible Collateral other than Cash, the bid price obtained by the
Valuation Agent multiplied by the Xxxxx'x Second Trigger Valuation
Percentage for such Eligible Collateral set forth in Paragraph 13(b)(ii).
(x) "S&P Value" means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (A) the bid price obtained by
the Valuation Agent for such Eligible Collateral and (B) the S&P Valuation
Percentage for such Eligible Collateral set forth in paragraph 13(b)(ii).
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
X-00
XXX XXXXX XXXX XX XXXXXXXX PLC Xxxxx Fargo Bank, National Association, not in its
By: Greenwich Capital Markets, Inc., its agent individual capacity but solely as trustee of the
supplemental interest trust with respect to Luminent
Mortgage Trust 2007-1
By______________________________
Name:
Title:
By______________________________
Name:
Title:
M-25
EXHIBIT N
FORM OF CONFIRMATION TO SWAP AGREEMENT
Financial Markets
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Memorandum January 25, 2007
To: Xxxxx Fargo Bank, N.A., not in its individual capacity but
solely as trustee of the supplemental interest trust with
respect to Luminent Mortgage Trust 2007-1 ("Party B")
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: Luminent 2007-1
Fax: (000) 000-0000
or for overnight delivery,
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
CC: Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: The Royal Bank of Scotland plc ("Party A")
Re:
Our Reference D16175038
Number:
Dear Sir or Madam,
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into between Xxxxx Fargo Bank, N.A., not in its
individual capacity but solely as trustee of the supplemental interest trust
(the "Supplemental Interest Trust") with respect to Luminent Mortgage Trust
N-1
2007-1, and The Royal Bank of Scotland plc, acting through its agent, Greenwich
Capital Markets, Inc. (each a "party" and together "the parties") on the Trade
Date specified below (the "Transaction") pursuant to the pooling agreement (the
"Pooling Agreement"), dated and effective as of January 1, 2007, among Xxxxx
Asset Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage
Finance Statutory Trust, as seller, Xxxxx Fargo Bank, N.A., as master servicer
and securities administrator, and HSBC Bank USA, National Association, as
trustee. This letter agreement constitutes the sole and complete "Confirmation",
as referred to in the Master Agreement as well as a "Schedule" as referred to in
the Master Agreement.
This letter agreement constitutes a "Confirmation" and the definitions and
provisions contained in the 2000 ISDA Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc., ("ISDA")
are incorporated into this Confirmation. This Confirmation will be governed by
and subject to the terms and conditions which would be applicable if, prior to
the Trade Date, the parties had executed and delivered an ISDA Master Agreement
(Multicurrency-Cross Border), in the form published by ISDA in 1992 (the "Master
Agreement"), with the attached Schedule B as the Schedule to the Master
Agreement and the modifications provided below (collectively, the "Agreement").
In the event of any inconsistency between the provisions of the Master Agreement
and this Confirmation and the attached Schedule B, this Confirmation will
govern. Terms capitalized but not defined herein or in the Definitions
incorporated herein shall have the respective meanings attributed to them in the
Pooling Agreement.
This Confirmation evidences a complete binding agreement between the parties as
to the terms of the Transaction to which this Confirmation relates. In
addition, each party represents to the other party and will be deemed to
represent to the other party on the date on which it enters into a
Transaction that (absent a written agreement between the parties that
expressly imposes affirmative obligations to the contrary for that
Transaction):
Principal. With respect to Party A, it is acting as principal and not as agent
when entering into the Transaction. With respect to Party B, it is acting
as trustee of the Supplemental Interest Trust with respect to Luminent
Mortgage Trust 2007-1 which is acting as principal and not as agent when
entering into the Transaction.
Non-Reliance. With respect to Party A, it is acting for its own account and it
has made its own independent decisions to enter into the Transaction and as
to whether the Transaction is appropriate or proper for it based upon its
own judgment and upon advice from such advisors as it has deemed necessary.
With respect to Party B, it is acting as trustee of the Supplemental
Interest Trust with respect to Luminent Mortgage Trust 2007-1 which is
acting for its own account and it has made its own independent decisions to
enter into the Transaction and as to whether the Transaction is appropriate
or proper for it based upon its own judgment and upon advice from such
advisors as it has deemed necessary.
It is not relying on any communication (written or oral) of the other
party as investment advice or as a recommendation to enter into the
Transaction; it being understood that information and explanations
related to the terms and conditions of the Transaction shall not be
considered investment advice or a recommendation to enter into the
Transaction. No communication (written or oral) received from the
other party shall be deemed to be an assurance or guarantee as to the
expected results of the Transaction.
N-2
Evaluation and Understanding. It is capable of evaluating and understanding (on
its own behalf or through independent professional advice), and understands
and accepts, the terms, conditions and risks of the Agreement and that
Transaction. It is also capable of assuming, and assumes, the financial and
other risks of the Agreement and that Transaction.
Status of Parties. The other party is not acting as an agent, fiduciary or
advisor for it in respect of that Transaction.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Notional Amount: With respect to any Calculation Period, the
amount set forth on Schedule A attached
hereto.
Trade Date: January 22, 2007
Effective Date: January 25, 2007
Termination Date: January 25, 2014, subject to adjustment in
accordance with the Modified Following
Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Period End Dates: The 25th day of each month of each year
commencing February 25, 2007, through and
including the Termination Date, subject to no
adjustment.
Fixed Rate Payer Payment Dates: Early Payment shall be applicable. The Fixed
Rate Payer Payment Dates shall be one
Business Day prior to each Fixed Rate Payer
Period End Date.
Fixed Rate: 5.100000%
Fixed Rate Day Count Fraction: 30/360 unadjusted.
Upfront Fee: USD 578,000.00, to be paid on the Effective
Date.
Floating Amounts:
Floating Rate Payer: Party A
N-3
Floating Rate Payer Period End Dates: The 25th day of each month of each year
commencing February 25, 2007, through and
including the Termination Date, subject to
adjustment in accordance with the Modified
Following Business Day Convention.
Floating Rate Payer Payment Dates: Early Payment shall be applicable. The
Floating Rate Payer Payment Dates shall be
one Business Day prior to each Floating
Rate Payer Period End Date.
Floating Rate for Initial Calculation TBD.
Period:
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One month
Spread: N/A
Floating Rate Day Count Fraction: Actual/360.
Reset Dates: The first day of each Calculation Period.
Compounding: Not applicable
Business Days for Payments: New York
Calculation Agent: Party A
6 Account Details:
Account for payments to Party A: For the account of:
The Royal Bank of Scotland Financial
Markets Fixed Income and Interest Rate
Derivative Operations
London SWIFT XXXXXX0XXXX
with JPMorgan Chase Bank New York XXXXXX00
ABA # 000000000
Account Number 400930153
Account for payments to Party B: Xxxxx Fargo Bank, N.A.
ABA 000-000-000
Account Number: 0000000000
Account Name: Corporate Trust Clearing
FFC: 50978503, Luminent 2007-1 Swap
Account
7 Offices:
N-4
The Office of Party A for this Transaction is: London
The Office of Party B for this Transaction is: Columbia, Maryland
8 Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
N-5
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: 0000 000 0000 / 6486 Phone: 0000 000 0000
THE ROYAL BANK OF SCOTLAND PLC
By: Greenwich Capital Markets, Inc., its agent
By ___________________________________
Name:
Title:
Accepted and confirmed as of the Trade Date written above:
XXXXX FARGO BANK, N.A., not in its individual capacity but solely as trustee of
the supplemental interest trust with respect to Luminent Mortgage Trust 2007-1
By ___________________________________
Name:
Title:
N-6
Schedule A to the Confirmation dated as of January 25, 2007
Re: Reference Number D16175038
Amortization Schedule, subject to adjustment in accordance with the Modified
Following Business Day Convention.
--------------------------------------------------------------------------------
From and Including To but excluding Notional Amount (USD)
------------------ ---------------- ---------------------
--------------------------------------------------------------------------------
1/25/2007 2/25/2007 431,778,638.43
--------------------------------------------------------------------------------
2/25/2007 3/25/2007 410,550,366.13
--------------------------------------------------------------------------------
3/25/2007 4/25/2007 390,367,087.85
--------------------------------------------------------------------------------
4/25/2007 5/25/2007 371,177,286.52
--------------------------------------------------------------------------------
5/25/2007 6/25/2007 352,931,989.14
--------------------------------------------------------------------------------
6/25/2007 7/25/2007 335,461,588.65
--------------------------------------------------------------------------------
7/25/2007 8/25/2007 318,886,456.23
--------------------------------------------------------------------------------
8/25/2007 9/25/2007 292,897,566.29
--------------------------------------------------------------------------------
9/25/2007 10/25/2007 278,588,140.13
--------------------------------------------------------------------------------
10/25/2007 11/25/2007 264,978,020.23
--------------------------------------------------------------------------------
11/25/2007 12/25/2007 252,033,016.93
--------------------------------------------------------------------------------
12/25/2007 1/25/2008 239,720,612.98
--------------------------------------------------------------------------------
1/25/2008 2/25/2008 228,009,881.74
--------------------------------------------------------------------------------
2/25/2008 3/25/2008 216,871,409.27
--------------------------------------------------------------------------------
3/25/2008 4/25/2008 205,874,866.01
--------------------------------------------------------------------------------
4/25/2008 5/25/2008 195,821,075.25
--------------------------------------------------------------------------------
5/25/2008 6/25/2008 186,258,373.05
--------------------------------------------------------------------------------
6/25/2008 7/25/2008 177,162,763.74
--------------------------------------------------------------------------------
7/25/2008 8/25/2008 168,349,646.83
--------------------------------------------------------------------------------
8/25/2008 9/25/2008 160,129,977.95
--------------------------------------------------------------------------------
9/25/2008 10/25/2008 152,311,713.63
--------------------------------------------------------------------------------
10/25/2008 11/25/2008 144,875,245.84
--------------------------------------------------------------------------------
11/25/2008 12/25/2008 137,801,924.74
--------------------------------------------------------------------------------
12/25/2008 1/25/2009 131,074,011.81
--------------------------------------------------------------------------------
1/25/2009 2/25/2009 124,674,635.34
--------------------------------------------------------------------------------
2/25/2009 3/25/2009 118,587,748.01
--------------------------------------------------------------------------------
3/25/2009 4/25/2009 112,480,334.78
--------------------------------------------------------------------------------
4/25/2009 5/25/2009 106,099,604.40
--------------------------------------------------------------------------------
5/25/2009 6/25/2009 100,928,880.37
--------------------------------------------------------------------------------
6/25/2009 7/25/2009 96,010,121.36
--------------------------------------------------------------------------------
7/25/2009 8/25/2009 91,292,878.13
--------------------------------------------------------------------------------
8/25/2009 9/25/2009 86,487,344.91
--------------------------------------------------------------------------------
9/25/2009 10/25/2009 82,275,429.02
--------------------------------------------------------------------------------
10/25/2009 11/25/2009 78,268,583.99
--------------------------------------------------------------------------------
11/25/2009 12/25/2009 74,456,827.38
--------------------------------------------------------------------------------
12/25/2009 1/25/2010 70,830,662.55
--------------------------------------------------------------------------------
1/25/2010 2/25/2010 67,381,055.09
--------------------------------------------------------------------------------
2/25/2010 3/25/2010 64,099,410.28
--------------------------------------------------------------------------------
N-7
--------------------------------------------------------------------------------
3/25/2010 4/25/2010 60,977,551.72
--------------------------------------------------------------------------------
4/25/2010 5/25/2010 58,007,700.93
--------------------------------------------------------------------------------
5/25/2010 6/25/2010 55,182,458.06
--------------------------------------------------------------------------------
6/25/2010 7/25/2010 52,494,783.39
--------------------------------------------------------------------------------
7/25/2010 8/25/2010 49,937,979.85
--------------------------------------------------------------------------------
8/25/2010 9/25/2010 47,505,676.32
--------------------------------------------------------------------------------
9/25/2010 10/25/2010 45,191,811.81
--------------------------------------------------------------------------------
10/25/2010 11/25/2010 42,990,620.30
--------------------------------------------------------------------------------
11/25/2010 12/25/2010 40,896,616.45
--------------------------------------------------------------------------------
12/25/2010 1/25/2011 38,904,581.90
--------------------------------------------------------------------------------
1/25/2011 2/25/2011 37,009,552.31
--------------------------------------------------------------------------------
2/25/2011 3/25/2011 35,206,804.95
--------------------------------------------------------------------------------
3/25/2011 4/25/2011 33,491,847.00
--------------------------------------------------------------------------------
4/25/2011 5/25/2011 31,860,404.31
--------------------------------------------------------------------------------
5/25/2011 6/25/2011 29,408,382.31
--------------------------------------------------------------------------------
6/25/2011 7/25/2011 27,808,505.40
--------------------------------------------------------------------------------
7/25/2011 8/25/2011 26,184,607.60
--------------------------------------------------------------------------------
8/25/2011 9/25/2011 11,396,668.57
--------------------------------------------------------------------------------
9/25/2011 10/25/2011 10,772,577.22
--------------------------------------------------------------------------------
10/25/2011 11/25/2011 10,247,691.09
--------------------------------------------------------------------------------
11/25/2011 12/25/2011 9,748,372.30
--------------------------------------------------------------------------------
12/25/2011 1/25/2012 9,273,375.76
--------------------------------------------------------------------------------
1/25/2012 2/25/2012 8,821,517.03
--------------------------------------------------------------------------------
2/25/2012 3/25/2012 8,391,669.32
--------------------------------------------------------------------------------
3/25/2012 4/25/2012 7,982,760.70
--------------------------------------------------------------------------------
4/25/2012 5/25/2012 7,593,771.44
--------------------------------------------------------------------------------
5/25/2012 6/25/2012 7,223,731.45
--------------------------------------------------------------------------------
6/25/2012 7/25/2012 6,871,717.88
--------------------------------------------------------------------------------
7/25/2012 8/25/2012 6,536,852.80
--------------------------------------------------------------------------------
8/25/2012 9/25/2012 6,218,301.05
--------------------------------------------------------------------------------
9/25/2012 10/25/2012 5,915,268.12
--------------------------------------------------------------------------------
10/25/2012 11/25/2012 5,626,998.18
--------------------------------------------------------------------------------
11/25/2012 12/25/2012 5,352,772.21
--------------------------------------------------------------------------------
12/25/2012 1/25/2013 5,091,906.22
--------------------------------------------------------------------------------
1/25/2013 2/25/2013 4,843,749.48
--------------------------------------------------------------------------------
2/25/2013 3/25/2013 4,607,682.99
--------------------------------------------------------------------------------
3/25/2013 4/25/2013 4,383,117.87
--------------------------------------------------------------------------------
4/25/2013 5/25/2013 4,169,493.92
--------------------------------------------------------------------------------
5/25/2013 6/25/2013 3,966,278.22
--------------------------------------------------------------------------------
6/25/2013 7/25/2013 3,772,963.80
--------------------------------------------------------------------------------
7/25/2013 8/25/2013 3,589,068.37
--------------------------------------------------------------------------------
8/25/2013 9/25/2013 1,608,724.45
--------------------------------------------------------------------------------
9/25/2013 10/25/2013 1,530,283.25
--------------------------------------------------------------------------------
10/25/2013 11/25/2013 1,455,665.46
--------------------------------------------------------------------------------
N-8
--------------------------------------------------------------------------------
11/25/2013 12/25/2013 1,384,684.77
--------------------------------------------------------------------------------
12/25/2013 1/25/2014 1,317,163.96
--------------------------------------------------------------------------------
N-9
Schedule B to the Confirmation dated as of January 25, 2007
Re: Reference Number D16175038
Between The Royal Bank of Scotland plc ("Party A") and Xxxxx Fargo Bank, N.A.,
not in its individual capacity but solely as trustee of the supplemental
interest trust with respect to Luminent Mortgage Trust 2007-1 ("Party B")
Part 1 Termination Provisions.
(a) "Specified Entity" means (i) in relation to Party A for all purposes of the
Agreement: None;
and (ii) in relation to Party B for all purposes of the Agreement: None.
(a) The "Failure to Pay or Deliver" provisions of Section 5(a)(i) will apply to
Party A and will apply to Party B; provided, however, that Section 5(a)(i)
is hereby amended by replacing the word "third" with the word "second".
(b) The "Breach of Agreement" provisions of Section 5(a)(ii) of the Agreement
will be inapplicable to Party B.
(c) The "Credit Support Default" provisions of Section 5(a)(iii) of the
Agreement will be applicable to Party B only with respect to return of
excess collateral to Party A under Paragraph 3(b) of the Credit Support
Annex to this Agreement. Notwithstanding Sections 5(a)(i) and 5(a)(iii),
any failure by Party A to comply with or perform any obligation to be
complied with or performed by Party A under the Credit Support Annex to
this Agreement shall not be an Event of Default unless (A) a Second Rating
Trigger Event with respect to Xxxxx'x has occurred and at least 30 Local
Business Days have elapsed since the Second Rating Trigger Event has
occurred and (B) such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to Party A.
(d) The "Misrepresentation" provisions of Section 5(a)(iv) of the Agreement
will be inapplicable to Party B.
(e) The "Default Under Specified Transaction" provisions of Section 5(a)(v) of
the Agreement will be applicable to Party A and will be inapplicable to
Party B.
(f) The "Cross Default" provisions of Section 5(a)(vi) of the Agreement will
apply to Party A with a Threshold Amount of 3% of the shareholder's equity
of Party A.
The "Cross Default" provisions of Section 5(a)(vi) of the Agreement will be
inapplicable to Party B.
(g) The "Bankruptcy" provision of Section 5(a)(vii) of the Agreement will be
applicable to Party B, subject to the following modifications:
(i) Section 5(a)(vii)(2), (7) and (9) shall not apply;
(ii) Section 5(a)(vii)(4) shall not apply to the extent that it refers to
proceedings or petitions instituted or presented by Party A or its
affiliates;
N-10
(iii) The phrase "seeks or" in Section 5(a)(vii)(6) shall be deemed
deleted; and
(iv) Section 5(a)(vii)(8) shall apply only to the extent that a relevant
event has an effect that is analogous to an effect described in
Section 5(a)(vii)(1) through (7) (as amended in this Part 1(h)) that
applies to Party B.
Section 5(a)(vii)(6) shall not apply to Party B in the case of an
appointment of (i) Xxxxx Fargo Bank, N.A., as the Supplemental Interest
Trust Trustee to the Supplemental Interest Trust under the Pooling
Agreement, (ii) Xxxxx Fargo, N.A., as the Custodian under the Pooling
Agreement, or (iii) any successor to Xxxxx Fargo, N.A. that is appointed in
accordance with the Pooling Agreement.
(h) The "Tax Event upon Merger" provisions of Section 5(b)(iii) shall not apply
to the extent that Party A is both the Burdened Party and the Affected
Party.
(i) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the
Agreement will be inapplicable to Party A and Party B.
(j) The "Automatic Early Termination" provision of Section 6(a) of the
Agreement will be inapplicable to Party A and Party B.
(k) Payments on Early Termination.
(i) For the purpose of Section 6(e) of the Agreement:
(A) Market Quotation will apply; and
(B) The Second Method will apply.
(ii) Notwithstanding Section 6 of this Agreement, so long as Party A is (A)
the Affected Party in respect of an Additional Termination Event or a
Tax Event Upon Merger or (B) the Defaulting Party in respect of any
Event of Default, paragraphs (A) to (F) below shall apply:
(A) The definition of "Market Quotation" shall be deleted in its
entirety and replaced with the following:
"Market Quotation" means, with respect to one or more Terminated
Transactions, an offer which, when made, is capable of becoming
legally binding upon acceptance (any such offer, a "Firm Offer") which
is (1) made by a Reference Market-maker that is an Eligible
Replacement, (2) for an amount that would be paid to Party B
(expressed as a negative number) or by Party B (expressed as a
positive number) in consideration of an agreement between Party B and
such Reference Market-maker to enter into a transaction (the
"Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transactions or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that date, (3) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of Transactions are to
be excluded but, without limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included and (4) made in respect
of a Replacement Transaction with commercial terms substantially the
N-11
same as those of this Agreement (save for the exclusion of provisions
relating to Transactions that are not Terminated Transactions)."
(B) The definition of "Settlement Amount" shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early Termination Date,
an amount (as determined by Party B (or the Depositor on its behalf))
equal to:
(1) If a Market Quotation for the relevant Terminated Transaction
or group of Terminated Transactions is selected by Party A and
accepted by Party B so as to become legally binding on or before
the day falling ten Local Business Days after the day on which
the Early Termination Date is designated (or such later day as
Party B may specify in writing to Party A, which in any event
will not be later than the Early Termination Date) (such day, the
"Latest Settlement Amount Determination Day"), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such Market Quotation; or
(2) If on the Latest Settlement Amount Determination Day, no
Market Quotation for the relevant Terminated Transaction or group
of Terminated Transactions has been accepted by Party B so as to
become legally binding and one or more Market Quotations have
been made and remain capable of legally binding upon acceptance,
the Settlement Amount shall equal the Termination Currency
Equivalent of the amount (whether positive or negative) of the
lowest of such Market Quotations (for the avoidance of doubt, the
lowest of such Market Quotations shall be the lowest Market
Quotation of such Market Quotations expressed as a positive
number or, if any of such Market Quotations is expressed as a
negative number, the Market Quotation expressed as a negative
number with the largest absolute value).
(3) If no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions has been selected
by Party A and accepted by Party B so as to become legally
binding on or before the Latest Settlement Amount Determination
Day, Party B's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for the relevant Terminated
Transaction or group of Terminated Transactions.
(C) For the purpose of clause (4) of the definition of Market
Quotation, Party B shall determine in its sole discretion, acting
in a commercially reasonable manner, whether a Firm Offer is made
in respect of a Replacement Transaction with commercial terms
substantially the same as those of this Agreement (save for the
exclusion of provisions relating to Transactions that are not
Terminated Transactions).
(D) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market Quotations remain
capable of becoming legally binding upon acceptance, Party B
shall be entitled to accept only the lowest of such Market
Quotations.
(E) Party B undertakes to use its reasonable efforts to obtain at
least one Market Quotation before the Latest Settlement Amount
Determination Day. Party B will be deemed to have discharged its
obligations under the preceding sentence if it requests Party A
to obtain Market Quotations, where such request is made in
writing within two Local Business Days after the day on which the
Early Termination Date is designated. If Party B requests Party A
in writing to obtain Market Quotations, Party A shall use its
reasonable efforts to do so before the Latest Settlement Amount
Determination Day.
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(F) Any amount calculated as being due in respect of an Early
Termination Date will be payable in accordance with Section
6(d)(ii), provided that if such payment is owed to Party B, it
will be payable on the day that notice of the amount payable is
given to Party A.
(G) If the Settlement Amount is not determined by reference to a
Market Quotation that has been accepted by Party B and the
Settlement Amount is a negative number, Section 6(e)(i)(3) of
this Agreement shall be deleted in its entirety and replaced with
the following:
Second Method and Market Quotation. If Second Method and Market
Quotation apply, (1) Party B shall pay to Party A an amount equal to
the absolute value of the Settlement Amount in respect of the
Terminated Transactions, (2) Party B shall pay to Party A the
Termination Currency Equivalent of the Unpaid Amounts owing to Party A
and (3) Party A shall pay to Party B the Termination Currency
Equivalent of the Unpaid Amounts owing to Party B, provided that, (i)
the amounts payable under (1), (2) and (3) shall be subject to netting
in accordance with Section 2(c) of this Agreement and (ii)
notwithstanding any other provision of this Agreement, any amount
payable by Party A under (3) shall not be netted off against any
amount payable by Party B under (1).
(l) "Termination Currency" means United States Dollars.
(m) Additional Termination Events. Each of the following shall be an Additional
Termination Event:
(i) First Rating Trigger Event. A First Rating Trigger Event (as defined
in Part 5(i)) has occurred, and Party A has not, within the period of
time prescribed, complied with Part 5(i)(ii) below. For purposes of
this Additional Termination Event, Party A shall be the sole Affected
Party.
(ii) S&P Second Rating Trigger Event. A Second Rating Trigger Event (as
defined in Part 5(i)) with respect to S&P has occurred, and Party A
has not, within 10 days after such event, complied with the
requirements of Part 5(i)(iii) below.
(iii) Moody's Second Rating Trigger Event. (A) A Second Rating Trigger
Event with respect to Moody's has occurred, and 30 or more Local
Business Days have elapsed and (B) (i) at least one Eligible
Replacement (as defined in Part 5(i)) has made a Firm Offer to be the
transferee of a transfer to be made in accordance with Part 5(i)(iii)
below and/or (ii) at least one entity with the Acceptable Ratings (as
defined in Part 5(i)) has made a Firm Offer to provide an Eligible
Guarantee in respect of all of Party A's present and future
obligations under this Agreement. For purposes of this Additional
Termination Event, Party A shall be the sole Affected Party.
(iv) Regulation AB. (A) The Depositor still has a reporting obligation with
respect to this Transaction pursuant to Regulation AB and (B) Party A
has not, within 30 days after receipt of a Disclosure Request complied
with the provisions set forth in Part 5(j)(iv) below (provided that if
the significance percentage reaches 10% or 20%, as applicable, after a
Disclosure Request has been made to Party A, Party A must comply with
the provisions set forth in Part 5(j)(iv) below within 10 Business
Days of Party A being informed of the significance percentage reaching
10% or 20%, as applicable) or has not, thereafter, complied with the
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provisions set forth in Part 5(j)(v) below. For purposes of this
Additional Termination Event, Party A shall be the sole Affected
Party.
(v) Acceleration or Redemption of Notes. The Class I Certificates are
accelerated, redeemed in whole or redeemed in part, for any reason,
pursuant to the Pooling Agreement. For purposes of this Additional
Termination Event, Party B shall be the sole Affected Party.
(vi) Modification of Pooling Agreement. The Pooling Agreement is modified
without the prior written consent of Party A, where such consent is
required under the terms of the Pooling Agreement. For purposes of
this Additional Termination Event, Party B shall be the sole Affected
Party.
(vii) Exercise of Purchase Option. The Trustee notifies the
Certificateholders of the intent to exercise a Clean-Up Call to
purchase the Group I Mortgage Loans pursuant to the Pooling Agreement.
For purposes of this Additional Termination Event, Party B shall be
the sole Affected Party.
Part 2 Tax Representations.
(a) Payer Representations For the purpose of Section 3(e) of the Agreement,
Party A will make the following representation and Party B will not make
the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of the
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of the Agreement and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of the Agreement, provided that
it shall not be a breach of this representation where reliance is placed on
clause (ii) and the other party does not deliver a form or document under
Section 4(a)(iii) of the Agreement by reason of material prejudice to its
legal or commercial position.
(b) Payee Representations For the purpose of Section 3(f) of the Agreement,
Party A represents that:
Party A is a tax resident of the United Kingdom;
(viii) Party A is a "foreign person" within the meaning of the applicable
U.S. Treasury Regulations concerning information reporting and backup
withholding tax (as in effect on January 1, 2001), unless Party A
provides written notice to Party B that it is no longer a foreign
person;
(ix) in respect of each Transaction Party A enters into through an office
or discretionary agent in the United States or which otherwise is
allocated (in whole or part) for United States federal income tax
purposes to such United States trade or business, each payment
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received or to be received by Party A under such Transaction (or
portion thereof, if applicable) will be effectively connected with its
conduct of a trade or business in the United States; and
(x) in respect of all other Transactions or portions thereof, no such
payment received or to be received by Party A in connection with this
Agreement is attributable to a trade or business carried on by it
through a permanent establishment in the United States.
Party B represents that it is the trustee of the supplemental interest
trust with respect to Luminent Mortgage Trust 2007-1, a New York common law
trust.
(c) Definition of "Indemnifiable Tax". Notwithstanding the definition of
"Indemnifiable Tax" in Section 14 of this Agreement, in relation to
payments by Party A, any Tax shall be an Indemnifiable Tax and, in relation
to payments by Party B, no Tax shall be an Indemnifiable Tax.
(n) No gross-up by Party B. Party B shall not have the obligations specified
for X in Section 2(d)(i)(4) or for Y in Section 2(d)(ii).
Part 3 Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of the Agreement, Party A and Party
B agree to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party Required to
Deliver Document Form/Document/Certificate Date by Which to be Delivered
Party A Any form or document required or reasonably Upon reasonable request.
requested to allow the other party to make payments
under the Agreement without any deduction or
withholding for or on account of any Tax, or with
such deduction or withholding at a reduced rate.
Party B Any form or document required or reasonably (i) Concurrently with the
requested to allow the other party to make payments execution and delivery of this
under the Agreement without any deduction or Confirmation, and (ii) anytime
withholding for or on account of any Tax, or with when the document last delivered
such deduction or withholding at a reduced rate. is incorrect or out-of-date.
(b) Other documents to be delivered and covered by the Section 3(d)
representation are:
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Covered by
Party required to Date by which to be Section 3(d)
deliver Form/Document/or Certificate delivered representation
Party A and Party B Incumbency Certificate (or, if Concurrently with the Yes
available the current authorized execution and delivery of this
signature book or equivalent Confirmation unless previously
authorizing documentation) delivered and still in full
specifying the names, titles, force and effect.
authority and specimen signatures
of the persons authorized to
execute the Confirmation which sets
forth the specimen signatures of
each signatory to the Confirmation
signing on its behalf.
Party B The Pooling Agreement. Concurrently with the No
execution and delivery of
the Confirmation.
Party A and Party B Legal opinion(s) with respect to Concurrently with the No
such party relating to the execution and delivery of
enforceability of the party's the Confirmation.
obligations under this
Agreement.
Part 4 Miscellaneous.
(a) Addresses for Notices. For the purposes of Section 12(a) of the Agreement:
Addresses for notices or communications to Party A and to Party B shall be
those set forth on the first page of the Confirmation.
(b) Notice by Facsimile Transmission.
Section 12(a) of the Agreement is amended by adding in the third line
thereof after the phrase "messaging system" and before the ")" the words ";
provided, however, any such notice or other communication may be given by
facsimile transmission (it being agreed that the burden of proving receipt
will be on the sender and will not be met by a transmission report
generated by the sender's facsimile machine)".
Section 12(a)(ii) of the Agreement is deleted in its entirety.
(c) Process Agent. For the purpose of Section 13(c) of the Agreement:
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Party A appoints as its Process Agent: none.
Party B appoints as its Process Agent: none.
(o) Offices. With respect to Party A, the provisions of Section 10(a) of the
Agreement will apply.
(p) Multibranch Party. For the purpose of Section 10(c) of the Agreement:
Party A is a Multibranch Party.
Party B is not a Multibranch Party.
(q) Calculation Agent. The Calculation Agent is Party A.
(r) Credit Support Document. Details of any Credit Support Document for Party A
and Party B: The ISDA Credit Support Annex (New York law), dated as of the
date hereof, between Party A and Party B, and such other collateralization
agreement or credit support arrangement provided for under the terms of any
Confirmation and Transaction evidenced thereby, together with any document
or agreement that by its terms secures or otherwise supports the parties'
obligations under a Transaction heretofore or hereafter entered into
between the parties. With respect to Party B, such credit support document
is solely in respect of Party B's obligations under Paragraph 3(b) of the
Credit Support Annex.
(s) Credit Support Provider.
Credit Support Provider means in relation to Party A: the guarantor under
an Eligible Guarantee, if any.
Credit Support Provider means in relation to Party B: none.
(t) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
conflicts of law doctrine other than New York General Obligations Law
Sections 5-1401 and 5-1402).
(u) Netting of Payments. Subparagraph (ii) of Section 2(c) of the Agreement
will apply to the Transaction evidenced by the Confirmation.
(v) Affiliates. Party B shall be deemed to not have any Affiliates for purposes
of this Transaction.
Part 5 Other Provisions.
(a) Additional Representation. Section 3(a) of the Agreement shall be amended
to include the following additional representations after paragraph
3(a)(v):
(vi) Eligible Contract Participant, etc. It is an "eligible contract
participant" as defined in Section 1a(12) of the U.S. Commodity Exchange
Act (7 U.S.C. 1a), as amended by the Commodity Futures Modernization Act of
2000 and the Transaction evidenced hereby has been the subject of
individual negotiations and is intended to be exempt from, or otherwise not
subject to regulation thereunder.
(b) Waiver of Right to Trial by Jury. Each party hereby irrevocably waives any
and all rights to trial by jury in any legal proceeding arising out of or
relating to this Agreement or any Transaction hereunder.
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(w) Absence of Litigation. In Section 3(c) of the Agreement the words "or any
of its Affiliates" shall be deleted.
(x) Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this
letter agreement is executed and delivered by Xxxxx Fargo Bank, N.A.
("Xxxxx"), not individually or personally but solely as the indenture
trustee, in the exercise of the powers and authority conferred and vested
in it, (b) the representations, undertakings and agreements herein are made
and intended not as personal representations, undertakings and agreements
by Xxxxx but are made and intended for the purpose of binding only the
Supplemental Interest Trust, (c) nothing herein contained shall be
construed as creating any personal or individual liability on Xxxxx to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties who are
signatories to this letter agreement and by any person claiming by, through
or under such parties, and (d) under no circumstances shall Xxxxx be
personally liable for the payment of any indebtedness or expenses of the
Supplemental Interest Trust or be personally liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Supplemental Interest Trust under this letter agreement.
(y) Proceedings. Party A shall not institute against or cause any other person
to institute against, or join any other person in instituting against the
Depositor, Party B or the Issuing Entity any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any federal or state bankruptcy, dissolution or similar law, for a
period of one year and one day following indefeasible payment in full of
the Class I Certificates, provided that nothing herein shall preclude, or
be deemed to estop Party A from taking any action in any case or proceeding
voluntarily filed or commenced by or on behalf of Party B or in any
involuntary case or proceeding after it has been commenced.
(z) Recording of Conversations. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties
and (ii) agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel of it.
(aa) No Set-off. Notwithstanding any provision of this Agreement or any other
existing or future agreement, each party irrevocably waives any and all
rights it may have to set-off, net recoup or otherwise withhold or suspend
or condition payment or performance of any obligation between it and the
other party hereunder against any obligation between it and the other party
under any other agreements. The provisions for Set-off set forth in Section
6(e) of the Agreement shall not apply for purposes of this Transaction.
(bb) Sole Transaction. For purposes of Section 1(c) of the Agreement, this
Transaction shall be the sole Transaction under the Agreement.
(cc) Rating Agency Downgrade.
(i) For purposes of this Part 5(i), the following definitions apply:
An entity has "Acceptable Ratings" if (x) its short-term unsecured and
unsubordinated debt is rated at least "A-1" by S&P (or, if it does not have
a short-term unsecured and unsubordinated debt rating from S&P, its
long-term unsecured and unsubordinated debt is rated at least "A+" by S&P),
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and (y) its long-term unsecured and unsubordinated debt is rated at least
A3 or its short-term unsecured and unsubordinated debt is rated at least
"Prime-2" (or if it does not have a short-term unsecured and unsubordinated
debt rating from Moody's, its long-term unsecured and unsubordinated debt
is rated at least A3).
"Eligible Guarantee" means an unconditional and irrevocable guarantee that
is provided by a guarantor with Acceptable Ratings as principal debtor
rather than surety and is directly enforceable by Party B, where either (A)
a law firm has given a legal opinion confirming that none of the
guarantor's payments to Party B under such guarantee will be subject to
withholding for tax or (B) such guarantee provides that, in the event that
any of such guarantor's payments to Party B are subject to withholding for
tax, such guarantor is required to pay such additional amount as is
necessary to ensure that the net amount actually received by Party B (free
and clear of any withholding tax) will equal the full amount Party B would
have received had no such withholding been required.
"Eligible Replacement" means an entity (A) with the Acceptable Ratings or
(B) whose present and future obligations owing to Party B are guaranteed
pursuant to an Eligible Guarantee.
A "First Rating Trigger Event" shall occur with respect to Party A (or any
applicable credit support provider), if (x) its short-term unsecured and
unsubordinated debt ceases to be rated at least "A-1" by S&P (or, if Party
A does not have a short-term unsecured and unsubordinated debt rating from
S&P, its long-term unsecured and unsubordinated debt ceases to be rated at
least "A+" by S&P), or (y)(a) its long-term unsecured and unsubordinated
debt ceases to be rated at least "A2" by Moody's or its short-term
unsecured and unsubordinated debt ceases to be rated at least "Prime-1" by
Moody's, or (b) if it does not have a short-term unsecured and
unsubordinated debt rating from Moody's, its long-term unsecured and
unsubordinated debt ceases to be rated at xxxxx "X0" by Moody's.
"Rating Agency Condition" means, with respect to any particular proposed
act or omission to act hereunder, that the party acting or failing to act
must consult with each of the Rating Agencies then providing a rating of
the Class I Certificates and receive from each such Rating Agency a prior
written confirmation that the proposed action or inaction would not cause a
downgrade or withdrawal of the then-current rating of the Class I
Certificates.
A "Second Rating Trigger Event" shall occur with respect to Party A (or any
applicable credit support provider), if (A) Party A's long-term unsecured
and unsubordinated debt ceases to be rated at least "BBB-" or Party A's
short-term unsecured and unsubordinated debt ceases to be rated at least
"A-3" or is withdrawn by S&P or (B) Party A's long-term unsecured and
unsubordinated debt ceases to be rated at least A3 or Party A's short-term
unsecured and unsubordinated debt ceases to be rated at least "Prime-2" (or
if Party A does not have a short-term unsecured and unsubordinated debt
rating from Moody's, its long-term unsecured and unsubordinated debt ceases
to be rated at least A3).
(ii) If a First Rating Trigger Event occurs with respect to Party A (or any
applicable Credit Support Provider), then (unless, within 30 days of
such First Rating Trigger Event, each of Standard and Poor's, a
Division of XxXxxx-Xxxx Companies, Inc. ("S&P"), and Xxxxx'x Investors
Service, Inc. ("Moody's) (each a "Rating Agency") has reconfirmed its
rating of the Class I Certificates which was in effect immediately
prior to such First Rating Trigger Event) Party A shall, within 30
days of such First Rating Trigger Event, at its own expense, (A)
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obtain an Eligible Guarantee in respect of all of Party A's present
and future obligations under this Agreement, subject to the Rating
Agency Condition in respect of S&P only (B) transfer all or
substantially all of its rights and obligations with respect to this
Agreement to an Eligible Replacement (provided that Party B shall
determine in its sole discretion, acting in a commercially reasonable
manner, whether or not a transfer relates to all or substantially all
of Party A's rights and obligations under this Agreement), subject to
the Rating Agency Condition in respect of S&P only or (C) post
collateral in accordance with the Credit Support Annex to this
Agreement, subject to the Rating Agency Condition in respect of S&P
only.
(iii) If a Second Rating Trigger Event occurs with respect to Party A (or
any applicable Credit Support Provider), then Party A will at its own
cost use commercially reasonable efforts to, as soon as reasonably
practicable (or, in the event of a Second Rating Trigger Event with
respect to S&P, within ten Business Days) either (A) obtain an
Eligible Guarantee in respect of all of Party A's present and future
obligations under this Agreement, subject to the Rating Agency
Condition, or (B) transfer all or substantially all of its rights and
obligations with respect to this Agreement to an Eligible Replacement
(provided that Party B shall determine in its sole discretion, acting
in a commercially reasonable manner, whether or not a transfer relates
to all or substantially all of Party A's rights and obligations under
this Agreement), subject to the Rating Agency Condition.
(dd) Compliance with Regulation AB.
(i) Party A acknowledges that for so long as there are reporting
obligations with respect to this Transaction under Regulation AB
("Regulation AB") under the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended (the "1934 Act"), the
Depositor is required under Regulation AB, to disclose certain
information set forth in Regulation AB regarding Party A or its group
of affiliated entities, if applicable, depending on the aggregate
"significance percentage" of this Agreement and any other derivative
contracts between Party A or its group of affiliated entities, if
applicable, and Party B with respect to the Group I Mortgage Loans, as
calculated from time to time in accordance with Item 1115 of
Regulation AB.
(ii) Subject to the provisions of clause (iii) below, and so long as there
are reporting obligations with respect to this Transaction under
Regulation AB, if the Depositor determines, reasonably and in good
faith, that the aggregate significance percentage of this Agreement
and the cap confirmation (reference number IRG16175012.2A.2B) has
increased to nine (9) percent, then the Depositor or Party B may
request from Party A (such request, a "Disclosure Request") on a
Business Day after the date of such determination the same information
set forth in Item 1115(b) of Regulation AB (such requested
information, subject to the last sentence of this paragraph, the
"Financial Disclosure") that would have been required if the
significance percentage had in fact increased to ten (10) percent.
Party B, the Depositor or any of its agents shall provide Party A with
the calculations and any other information reasonably requested by
Party A with respect to the Depositor's determination that led to the
Disclosure Request. The parties hereto further agree that the
Financial Disclosure provided to meet the Disclosure Request may be,
solely at Party A's option, either the information set forth in Item
1115(b)(1) or Item 1115(b)(2) of Regulation AB.
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(iii) So long as there are reporting obligations with respect to this
Transaction under Regulation AB, if the Depositor determines,
reasonably and in good faith, that the aggregate significance
percentage of this Agreement and the cap confirmation (reference
number IRG16175012.2A.2B) has increased to nineteen (19) percent, then
the Depositor or Party B may make a Disclosure Request to Party A on a
Business Day after the date of such determination for the Financial
Disclosure that would have been required if the significance
percentage had in fact increased to twenty (20) percent. Party B, the
Depositor or any of its agents shall provide Party A with the
calculations and any other information reasonably requested by Party A
with respect to the Depositor's determination that led to the
Disclosure Request.
(iv) Upon the occurrence of a Disclosure Request, Party A, at its own
expense, shall (i) provide the Depositor and Party B with the
Financial Disclosure, (ii) subject to Rating Agency Confirmation,
secure an Eligible Replacement to replace Party A as party to this
Agreement on terms substantially similar to this Agreement which
entity is able to, and does, provide the Financial Disclosure or (iii)
subject to Rating Agency Confirmation, obtain a guaranty of Party A's
obligations under this Agreement from an affiliate of Party A that is
able to provide the Financial Disclosure, such that disclosure
provided in respect of the affiliate will satisfy any disclosure
requirements applicable to Party A, and cause such affiliate to
provide Financial Disclosure. For purposes of clause (ii) above, the
parties agree that National Westminster Bank Plc ("NatWest") shall be
an acceptable replacement for Party A, so long as NatWest satisfies
the conditions specified in such clause (ii). If permitted by
Regulation AB, any required Financial Disclosure may be provided by
incorporation by reference from reports filed pursuant to the 1934
Act.
(v) Party A agrees that, if it responds to a Disclosure Request by
providing Financial Disclosure, then, for so long as the Depositor has
reporting obligations under the 1934 Act with respect to this
Transaction, it will provide any interim updates to Financial
Disclosure within 5 Business Days following the availability thereof
(but in no event more than six months after the end of Party A's
fiscal year for any annual update). If permitted by Regulation AB, any
such update may be provided by incorporation by reference from reports
filed pursuant to the 0000 Xxx.
(ee) Severability. If any term, provision, covenant, or condition of the
Agreement, or the application thereof to any other party or circumstance,
shall be held invalid or unenforceable (in whole or in part) for any
reason, the remaining terms, provisions, covenants, and conditions hereof
shall continue in full force and effect as if the Agreement has been
executed with the invalid or unenforceable provision portion eliminated, so
long as the Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter of
the Agreement and the deletion of such portion of the Agreement will not
substantially impair the respective benefits or expectations of the
parties. The parties shall endeavor to engage in good faith negotiations to
replace any invalid or unenforceable term, provision, covenant or
conditions with a valid or enforceable term, provision, covenant or
condition, the economic effect of which comes as close as possible to that
of the invalid or unenforceable term, provision, covenant or condition.
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(ff) Counterparts. This letter agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(gg) USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to
the requirements of the USA PATRIOT ACT (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies Party B, which information
includes the name and address of Party B and other information that will
allow Party A to identify Party B in accordance with the Act.
(hh) Transfers.
(i) Section 7 is hereby amended to read in its entirety as follows:
"Subject to Section 6(b)(ii), Part 5(i) and Part 5(j), neither Party A
nor Party B is permitted to assign, novate or transfer (whether by way
of security or otherwise) as a whole or in part any of its rights,
obligations or interests under the Agreement or any Transaction
without (a) the prior written consent of the other party and (b)
satisfaction of the Rating Agency Condition with respect to S&P."
(ii) If an Eligible Replacement has made a Firm Offer (which remains an
offer that will become legally binding upon acceptance by Party B) to
be the transferee pursuant to a Permitted Transfer, Party B shall, at
Party A's written request and at Party A's expense, take any
reasonable steps required to be taken by Party B to effect such
transfer.
"Permitted Transfer" means a transfer by novation by Party A to a
transferee (the "Transferee") of all, but not less than all, of Party
A's rights, liabilities, duties and obligations under this Agreement,
with respect to which transfer each of the following conditions is
satisfied: (a) the Transferee is an Eligible Replacement that is a
recognized dealer in interest rate caps organized under the laws of
the United States of America or a jurisdiction located in the United
States of America (or another jurisdiction reasonably acceptable to
Party B), (b) as of the date of such transfer neither Party B nor the
Transferee would be required to withhold or deduct on account of Tax
from any payments under this Agreement, (c) an Event of Default or
Termination Event would not occur as a result of such transfer, (d)
Party B has consented in writing to the transfer, such consent not to
be unreasonably withheld, (e) the transfer would not give rise to a
taxable event or any other adverse Tax consequences to Party B or its
interest holders, as determined by Party B in its sole discretion, (f)
pursuant to a written instrument (the "Transfer Agreement"), the
Transferee acquires and assumes all rights and obligations of Party A
under the Agreement and the relevant Transaction, (g) Party B shall
have determined, in its sole discretion, acting in a commercially
reasonable manner, that such Transfer Agreement is effective to
transfer to the Transferee all, but not less than all, of Party A's
rights and obligations under the Agreement and all relevant
Transactions; (h) Party A will be responsible for any costs or
expenses incurred in connection with such transfer (including any
replacement cost of entering into a replacement transaction); (i)
Moody's has been given prior written notice of such transfer and the
Rating Agency Condition is satisfied with respect to S&P; and (j) such
transfer otherwise complies with the terms of the Pooling Agreement.
(ii) Amendment. Notwithstanding any provision to the contrary in this Agreement,
no amendment, supplement or other modification of either this Agreement or
N-22
any Transaction under this Agreement shall be permitted by either party
unless each of the Rating Agencies has been provided prior written notice
of the same and S&P confirms in writing (including by facsimile
transmission) that it will not downgrade, withdraw or otherwise modify its
then-current ratings of the Class I Certificates.
(jj) Non-Recourse. Notwithstanding any provision herein, the obligations of
Party B hereunder are limited recourse obligations of Party B, payable
solely from the Supplemental Interest Trust and the proceeds thereof, in
accordance with the terms of the Pooling Agreement. In the event that the
Supplemental Interest Trust and the proceeds thereof, should be
insufficient to satisfy all claims outstanding and following the
realization of the account held by the Supplemental Interest Trust and the
proceeds thereof, any claims against or obligations of Party B under this
Agreement still outstanding shall be extinguished and thereafter not
revive.
(kk) Third Party Beneficiary. The Depositor and the Sponsor shall each be an
express third party beneficiary of this Agreement with respect to Party A's
undertakings under Part 5(j) only.
N-23
Party A - The Royal Bank of Scotland plc
Party B - Xxxxx Fargo Bank, National Association, not in its individual capacity
but solely as trustee of the supplemental interest trust with respect to
Luminent Mortgage Trust 2007-1
For the avoidance of doubt, and notwithstanding anything to the contrary that
may be contained in the Agreement, this Credit Support Annex shall relate solely
to the Transactions documented in the Confirmations dated January 25, 2007,
between Party A and Party B with reference numbers D16175038 and
IRG16175012.2A.2B.
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in this
Annex includes the following additional obligations:
With respect to Party A: Not applicable.
With respect to Party B: Not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a),
except that (I) the words "upon a demand made by the Secured
Party on or promptly following a Valuation Date" shall be deleted
and replaced by the words "on each Valuation Date" and (II) the
sentence beginning "Unless otherwise specified in Paragraph 13"
and ending "(ii) the Value as of that Valuation Date of all
Posted Credit Support held by the Secured Party." shall be
deleted and replaced by the following:
"The "Delivery Amount" applicable to the Pledgor for any Valuation
Date will equal the greatest of
(1) the amount by which (a) the S&P Collateral Amount for such
Valuation Date exceeds (b) the S&P Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party,
(2) the amount by which (a) the Moody's First Collateral Amount for
such Valuation Date exceeds (b) the Moody's First Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party, and
(3) the amount by which (a) the Moody's Second Collateral Amount for
such Valuation Date exceeds (b) the Moody's Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party."
(B) "Return Amount" has the meaning specified in Paragraph 3(b),
except that the sentence beginning "Unless otherwise specified in
Paragraph 13" and ending "(ii) the Credit Support Amount." shall
be deleted and replaced by the following:
"The "Return Amount" applicable to the Secured Party for any Valuation
Date will equal the least of
N-24
(1) the amount by which (a) the S&P Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party exceeds (b) the
S&P Collateral Amount for such Valuation Date,
(2) the amount by which (a) the Moody's First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured Party
exceeds (b) the Moody's First Collateral Amount for such Valuation
Date, and
(3) the amount by which (a) the Moody's Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party exceeds (b) the Moody's Second Collateral Amount for such
Valuation Date."
(C) "Credit Support Amount" shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any
Valuation Date, reference shall be made to the S&P Collateral
Amount, the Moody's First Collateral Amount, or the Moody's
Second Collateral Amount, in each case for such Valuation Date,
as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B), above.
The "S&P Collateral Amount" means zero, provided that for so long
as a First Rating Trigger Event with respect to S&P has occurred
and is continuing for at least 30 days or a Second Rating Trigger
Event with respect to S&P has occurred and is continuing, the S&P
Collateral Amount shall equal the sum of (I) Party B's Exposure
and (II) the sum, over all Transactions, of the product
S&P Volatility Buffer*Hedge Notional, where
"Hedge Notional" means the notional amount of the relevant
Transaction for the relevant Calculation Period.
"S&P Volatility Buffer" means, for any Transaction, the related
percentage set forth in the following table.
_______________________________________________________________________________________________________
The higher of the S&P short-term Remaining Remaining Remaining Remaining
credit rating of (i) Party A and Weighted Weighted Weighted Weighted Average
(ii) the Credit Support Provider Average Average Maturity Average Maturity
of Party A, if applicable Maturity up to 5 years Maturity up to 30 years
up to 3 years up to 10 years
_______________________________________________________________________________________________________
At least "A-2" 2.75% 3.25% 4.00% 4.75%
_______________________________________________________________________________________________________
"A-3" 3.25% 4.00% 5.00% 6.25%
_______________________________________________________________________________________________________
"BB+" or lower 3.50% 4.50% 6.75% 7.50%
_______________________________________________________________________________________________________
The "Moody's First Collateral Amount" means zero, provided that
for so long as (A) a First Rating Trigger Event with respect to
Moody's has occurred and is continuing and either (i) such event
existed at the time this Annex was executed or assigned by Party
A to another party or (ii) at least 30 Local Business Days have
elapsed since such event occurred and (B)(i) no Second Rating
Trigger Event with respect to Moody's has occurred and is
continuing or (ii) less than 30 Local Business Days have elapsed
since the occurrence of a Second Rating Trigger Event with
respect to Moody's, then the Moody's First Collateral Amount
N-25
shall equal the sum of (I) Party B's Exposure and (ii) the sum,
over all Transactions, of
Min [15*DV01, 2%*Hedge Notional]; and
The "Moody's Second Collateral Amount" means zero, provided that,
for so long as a Second Rating Trigger Event with respect to
Moody's has occurred and has been continuing for 30 or more Local
Business Days, then the Moody's Second Collateral Amount shall
equal
Max [0, Next Payment, Party B's Exposure + Additional Amount], where
Next Payment = the sum of the net payments due from Party A to
Party B (if any) on the next payment date for all Transactions.
Addition Amount = the sum, over all Transactions of
(a) with respect to each Transaction that is a single
currency swap with a fixed notional amount for each
Calculation Period, Min [50*DV01, 8%* Aggregate Hedge
Notional], and
(b) with respect to each Transaction that is not a
single-currency swap with a fixed notional amount for
each Calculation Period, Min [65*DV01, 10%* Aggregate
Hedge Notional], where
DV01 = Party A's estimate of the change in the mid-market value
of Party B's Exposure resulting from a one basis point change in
the swap curve, and
Aggregate Hedge Notional = the aggregate of the applicable
notional amounts of all Transactions for the relevant Calculation
Period.
N-26
(ii) Eligible Collateral. The following items will qualify
as "Eligible Collateral" for the party specified:
Collateral Type S&P Valuation Moody's Valuation Moody's Valuation
Percentage Percentage at First Percentage at Second
Trigger Rating Event Trigger Rating Event
(A) Cash, in the form of USD 100% 100% 100%
(B) Negotiable Debt Obligations (as defined below) 98.9% 100% 100%
issued by the Government of the United States of
America having a remaining maturity of not more
than one year.
(C) Negotiable Debt Obligations issued by the 98.0% 100% 99%
Government of the United States of America having a
remaining maturity of more than one but not more
than two years.
(D) Negotiable Debt Obligations issued by the 97.4% 100% 98%
Government of the United States of America having a
remaining maturity of more than two but not more
than three years.
(E) Negotiable Debt Obligations issued by the 95.5% 100% 97%
Government of the United States of America having a
remaining maturity of more than three but not more
than five years.
(F) Negotiable Debt Obligations issued by the 93.7% 100% 96%
Government of the United States of America having a
remaining maturity of more than five but not more
than seven years.
(G) Negotiable Debt Obligations issued by the 92.5% 100% 94%
Government of the United States of America having a
remaining maturity of more than seven but not more
than ten years.
(H) Negotiable Debt Obligations issued by the 91.1% 100% 90%
Government of the United States of America having a
remaining maturity of more than ten but not more
than twenty years.
(I) Negotiable Debt Obligations issued by the 88.6% 100% 88%
Government of the United States of America having a
remaining maturity of more than twenty years.
N-27
As used above, the following terms have the indicated meanings:
"Negotiable Debt Obligation" means a debt obligation in a stated
principal amount with a non-variable fixed maturity, which cannot
be redeemed by its issuer before its maturity nor put to the
issuer for redemption before its maturity. It must bear interest
on its stated principal amount at a non-variable fixed rate until
maturity (or, in the case of an obligation with an original
maturity of less than one year, bear no interest at all).
(iii) Other Eligible Support. The following items will qualify as
"Other Eligible Support" for the party specified: Not Applicable.
(iv) Thresholds.
(A) "Independent Amount" means with respect to Party A: Not
Applicable.
"Independent Amount" means with respect to Party B: Not
Applicable.
(B) "Threshold" means with respect to Party A, infinity,
provided that for so long as (1) a First Rating Trigger
Event with respect to Moody's has occurred and is continuing
and either (i) such First Rating Trigger Event existed at
the time this Annex was executed or (ii) at least 30 Local
Business days have elapsed since such First Rating Trigger
Event occurred, or (B) a First Rating Trigger Event with
respect to S&P has occurred and is continuing for at least
30 days or a Second Rating Trigger Event with respect to S&P
has occurred and is continuing, the Threshold with respect
to Party A shall be zero.
"Threshold" means with respect to Party B, infinity.
(C) "Minimum Transfer Amount" means with respect to Party A: USD
100,000, and with respect to Party B: USD 100,000, provided,
that if the aggregate principal balance of the Class I
Certificates rated by S&P ceases to be more than USD
50,000,000, the "Minimum Transfer Amount" shall be USD
50,000 and provided further that if a Party is a Defaulting
Party, or the Affected Party under an Additional Termination
Event, the Minimum Transfer Amount for such party shall be
zero.
(D) Rounding. The Delivery Amount and the Return Amount will be
rounded up and down, respectively, to the nearest integral
multiple of $10,000.
(c) (i) External Verification. Notwithstanding anything to the contrary in the
definitions of Valuation Agent or Valuation Date, at any time at which
Party A (or, to the extent applicable, its Credit Support Provider) does
not have a long-term unsubordinated and unsecured debt rating of at least
"BBB+" from S&P, the Valuation Agent shall (A) calculate the Secured
Party's Exposure and the S&P Value (as defined below) of Posted Credit
Support on each Valuation Date based on internal marks and (B) verify such
calculations with external marks monthly by obtaining on the last Local
Business Day of each calendar month two external marks for each Transaction
to which this Annex relates and for all Posted Credit Support; such
verification of the Secured Party's Exposure shall be based on the higher
of the two external marks. Each external xxxx in respect of a Transaction
shall be obtained from an independent Reference Market-maker that would be
eligible and willing to enter into such Transaction in the absence of the
current derivative provider, provided that an external xxxx xxx not be
N-28
obtained from the same Reference Market-maker more than four times in any
12-month period. The Valuation Agent shall obtain these external marks
directly or through an independent third party, in either case at no cost
to Party B. The Valuation Agent shall calculate on each Valuation Date (for
purposes of this paragraph, the last Local Business Day in each calendar
month referred to above shall be considered a Valuation Date) the Secured
Party's Exposure based on the greater of the Valuation Agent's internal
marks and the external marks received. If the S&P Value on any such
Valuation Date of all Posted Credit Support then held by the Secured Party
is less than the S&P Collateral Amount on such Valuation Date (in each case
as determined pursuant to this paragraph), Party A shall, within three
Local Business Days of such Valuation Date, Transfer to the Secured Party
Eligible Credit Support having an S&P Value as of the date of Transfer at
least equal to such deficiency.
(ii) Notice to S&P. At any time at which Party A (or, to the extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least "BBB+" from S&P, the
Valuation Agent shall provide to S&P not later than the Notification Time
on the Local Business Day following each Valuation Date its calculations of
the Secured Party's Exposure and the S&P Value of any Eligible Credit
Support or Posted Credit Support for that Valuation Date. The Valuation
Agent shall also provide to S&P any external marks received pursuant to the
preceding paragraph.
(d) Valuation and Timing.
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means: any Local Business Day.
(iii) "Valuation Time" means the close of business on the Local Business
Day before the Valuation Date or date of calculation, as applicable;
provided, however, that the calculations of Value and Exposure will be made
as of approximately the same time on the same date.
(iv) "Notification Time" means 9:00 a.m., New York time, on a Local
Business Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. For purposes
of Paragraph 8(a), each Termination Event will be a "Specified Condition"
for the Pledgor, if the Secured Party has designated an Early Termination
Date in connection with the Termination Event. For all other purposes of
this Annex, each Termination Event specified below with respect to a party
will be a "Specified Condition" for that party (that party being the
Affected Party if the Termination Event occurs with respect to that party):
Termination Event Party A Party B
Illegality [N/A] [N/A]
Tax Event [N/A] [N/A]
Tax Event Upon Merger [N/A] [N/A]
Credit Event Upon Merger [N/A] [N/A]
Additional Termination Event(s) [X] [X]
N-29
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. The Pledgor shall obtain the Secured Party's consent for any
substitution pursuant to Paragraph 4(d). Such consent shall not be
unreasonably withheld.
(iii) Additional Conditions Precedent. Paragraph 4(a) of this Annex is
hereby amended to include a new subsection: "(iii) no deficiency exists in
the Value of the Collateral at the time of Substitution."
(f) Dispute Resolution.
(i) "Resolution Time" means 9:00 a.m., New York time, on the Local Business
Day following the date on which the notice of the dispute is given by the
Disputing Party to the other party.
(ii) Value. For the purposes of Paragraphs 5(i)(c) and 5(ii), the Value of
the outstanding Credit Support Amount or of any transfer of Eligible Credit
Support or Posted Credit Support other than Cash (the "Non-Cash Credit
Support") will be calculated as follows: the product of (A) appropriate
Valuation Percentage and (B) the sum of (I) the mean of the bid prices
quoted on such date by any three principal market makers for such Non-Cash
Credit Support chosen by the Disputing Party, or if three such quotations
are not available from principal market makers for such date, using two
such quotations, or if only one such quotation is obtained using such
quotation, or if no quotations are available using the mean of such bid
prices as of the day, next preceding such date, on which one or more of
such quotations were available, plus (II) the accrued interest on such
Non-Cash Credit Support (except to the extent Transferred to a party
pursuant to this Agreement or included in the applicable price referred to
in subparagraph (A) of this Clause) as of such date.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. Party B or its
Custodian will be entitled to hold Posted Collateral pursuant to Paragraph
6(b); provided that the following conditions applicable to it are
satisfied:
(A) In the event that Party B holds Posted Collateral, Party B is not
a Defaulting Party or an Affected Party under an Additional
Termination Event.
(B) Posted Collateral may be held only in the following jurisdiction:
New York and Minnesota.
(C) In the event that the Custodian holds Posted Collateral, the
long-term unsubordinated unsecured debt of the Custodian is rated
at least A+ by Standard & Poors, a division of The XxXxxx-Xxxx
Companies, Inc. (or any successor thereto) and at least A1 by
Xxxxx'x Investors Service, Inc. (or any successor thereto).
Initially, the Custodian for Party B is Xxxxx Fargo Bank, N.A.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c)(i) shall
not apply.
N-30
(h) Distributions and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be the weighted average rate of
interest earned by the Secured Party in respect of Posted Collateral in the
form of Cash.
(ii) Transfer of Interest Amount. The transfer of the Interest Amount will
be made on the second Local Business Day of each calendar month in respect
of the Interest Amount for the preceding calendar month, provided, however,
that the obligation of Party B to Transfer any Interest Amount to Party A
shall be limited to the extent that Party B has earned and received such
funds and such funds are available to Party B.
(iii) Alternative to Interest Amount. Not applicable.
(i) Additional Representation(s). Not applicable.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted Support
means: Not applicable.
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support means: Not applicable.
(k) Demands and Notices.
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement, unless otherwise
specified here:
Party A:
Global Collateral Support Unit
The Royal Bank of Scotland plc, Financial Markets
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Facsimile: 44.207 000 0000
Telephone: 44.207 000 0000
With a copy to:
000 Xxxxxxxxx Xxxx
Xxxxxxxxx XX 00000
Attn: Derivatives Settlements
Telephone: 000-000-0000 (Xxx Xxxxx)
000-000-0000 (Operations main number)
Facsimile: 000-000-0000
N-31
Party B:
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: Luminent 2007-1
Fax: (000) 000-0000
or for overnight delivery,
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Luminent 2007-1
(l) Address for Transfers. All transfers hereunder will be made to the account
or accounts most recently notified by each party to the other.
(m) Other Provisions.
(i) Single Transferor and Single Transferee. Party A and Party B hereby
agree that, notwithstanding anything to the contrary in this Annex, (a) the
term "Secured Party" as used in this Annex means only Party B, (b) the term
"Pledgor" as used in this Annex means only Party A, (c) only Party A makes
the pledge and grant in Paragraph 2, the acknowledgement in the final
sentence of Paragraph 8(a) and the representations in Paragraph 9.
(ii) Events of Default. Paragraph 7 will not apply to cause any Event of
Default to exist with respect to Party B except that Paragraph 7(i) will
apply to Party B solely in respect of Party B's obligations under Paragraph
3(b) of the Credit Support Annex. Notwithstanding anything to the contrary
in Paragraph 7, any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the Credit
Support Annex shall only be an Event of Default if (A) Second Rating
Trigger Event with respect to S&P has occurred and been continuing or (B) a
Second Rating Trigger Event with respect to Moody's has occurred and been
continuing for 30 or more Local Business Days and such failure is not
remedied on or before the third Local Business Day after notice of such
failure is given to Party A.
(iii) Form of Annex. Party A and Party B hereby agree that the text of
Paragraphs 1 through 12, inclusive, of this Annex is intended to be the
printed form of ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject to New York Law Only version) as published and copyrighted in 1994
by the International Swaps and Derivatives Association, Inc.
(iv) Expenses. Notwithstanding anything to the contrary in Paragraph 10,
the Pledgor will be responsible for, and will reimburse the Secured Party
for, all transfer and other taxes and other costs involved in any Transfer
of Eligible Collateral.
(v) Withholding. Paragraph 6(d)(ii) is hereby amended by inserting
immediately after "the Interest Amount" in the fourth line thereof the
words "less any applicable withholding taxes."
(vi) "Local Business Day" means, for purposes of the Credit Support Annex,
any day on which (A) commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York and
the location of Party A, Party B and any Custodian, and (B) in relation to
a Transfer of Eligible Collateral, any day on which the clearance system
agreed between the parties for the delivery of Eligible Collateral is open
for acceptance and execution of settlement instructions (or in the case of
a Transfer of Cash or other Eligible Collateral for which delivery is
N-32
contemplated by other means a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign deposits) in
New York and the location of Party A, Party B and any Custodian.
(vii) Calculation of Value. Paragraph 4(c) is hereby amended by deleting
the word "Value" and inserting in lieu thereof "S&P Value, Moody's First
Trigger Value, Moody's Second Trigger Value". Paragraph 4(d)(ii) is hereby
amended by (A) deleting the words "a Value" and inserting in lieu thereof
"an S&P Value, Moody's First Trigger Value, and Moody's Second Trigger
Value" and (B) deleting the words "the Value" and inserting in lieu thereof
"S&P Value, Moody's First Trigger Value, and Moody's Second Trigger Value".
Paragraph 5 (flush language) is hereby amended by deleting the word "Value"
and inserting in lieu thereof "S&P Value, Moody's First Trigger Value, or
Moody's Second Trigger Value". Paragraph 5(i) (flush language) is hereby
amended by deleting the word "Value" and inserting in lieu thereof "S&P
Value, Xxxxx'x First Trigger Value, and Xxxxx'x Second Trigger Value".
Paragraph 5(i)(C) is hereby amended by deleting the word "the Value, if"
and inserting in lieu thereof "any one or more of the S&P Value, Xxxxx'x
First Trigger Value, or Xxxxx'x Second Trigger Value, as may be". Paragraph
5(ii) is hereby amended by (1) deleting the first instance of the words
"the Value" and inserting in lieu thereof "any one or more of the S&P
Value, Xxxxx'x First Trigger Value, or Xxxxx'x Second Trigger Value" and
(2) deleting the second instance of the words "the Value" and inserting in
lieu thereof "such disputed S&P Value, Xxxxx'x First Trigger Value, or
Xxxxx'x Second Trigger Value". Each of Paragraph 8(b)(iv)(B) and Paragraph
11(a) is hereby amended by deleting the word "Value" and inserting in lieu
thereof "least of the S&P Value, Xxxxx'x First Trigger Value, and Xxxxx'x
Second Trigger Value".
(viii) "Xxxxx'x First Trigger Value" means, on any date and with respect to
any Eligible Collateral other than Cash, the bid price obtained by the
Valuation Agent multiplied by the Xxxxx'x First Trigger Valuation
Percentage for such Eligible Collateral set forth in Paragraph 13(b)(ii).
(ix) "Xxxxx'x Second Trigger Value" means, on any date and with respect to
any Eligible Collateral other than Cash, the bid price obtained by the
Valuation Agent multiplied by the Xxxxx'x Second Trigger Valuation
Percentage for such Eligible Collateral set forth in Paragraph 13(b)(ii).
(x) "S&P Value" means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (A) the bid price obtained by
the Valuation Agent for such Eligible Collateral and (B) the S&P Valuation
Percentage for such Eligible Collateral set forth in paragraph 13(b)(ii).
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
N-33
THE ROYAL BANK OF SCOTLAND PLC Xxxxx Fargo Bank, National Association, not in its
By: Greenwich Capital Markets, Inc., its agent individual capacity but solely as trustee of the
supplemental interest trust with respect to Luminent
Mortgage Trust 2007-1
By______________________________
Name:
Title:
By______________________________
Name:
Title:
N-34
EXHIBIT O
TRIAD COMMITMENT LETTERS
(as retained on file with the Washington, D.C. office of Hunton & Xxxxxxxx LLP)
O-1
EXHIBIT 1122
SERVICING CRITERIA
The assessment of compliance to be delivered by the Master Servicer, the
Securities Administrator and the Custodian shall address, at a minimum, the
criteria identified as below as "Applicable Servicing Criteria" with respect to
such party:
Where there are multiple checks for criteria the attesting party will identify
in their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
-------------------------------------------------------------------------------------------------------
Regulation AB Servicing Criteria Servicers Master Servicer, Custodian
Reference Paying Agent,
Securities
Administrator
-------------------------------------------------------------------------------------------------------
General Servicing Considerations
------------------------------------------------------------------- --------- -------------------------
Policies and procedures are instituted X X
to monitor any performance or other
triggers and events of default in
accordance with the transaction
1122(d)(1)(i) agreements.
-------------------------------------------------------------------------------------------------------
If any material servicing activities X X
are outsourced to third parties,
policies and procedures are instituted
to monitor the third party's
performance and compliance with such
1122(d)(1)(ii) servicing activities.
-------------------------------------------------------------------------------------------------------
Any requirements in the transaction
agreements to maintain a back-up
servicer for the Pool Assets are
1122(d)(1)(iii) maintained.
-------------------------------------------------------------------------------------------------------
A fidelity bond and errors and X X
omissions policy is in effect on the
party participating in the servicing
function throughout the reporting
period in the amount of coverage
required by and otherwise in accordance
with the terms of the transaction
1122(d)(1)(iv) agreements.
-------------------------------------------------------------------------------------------------------
Cash Collection and Administration
-------------------------------------------------------------------------------------------------------
Payments on pool assets are deposited X X
into the appropriate custodial bank
accounts and related bank clearing
accounts no more than two business days
following receipt, or such other number
of days specified in the transaction
1122(d)(2)(i) agreements.
-------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on X X
behalf of an obligor or to an investor
1122(d)(2)(ii) are made only by authorized personnel.
-------------------------------------------------------------------------------------------------------
Advances of funds or guarantees X X
regarding collections, cash flows or
distributions, and any interest or
other fees charged for such advances,
are made, reviewed and approved as
1122(d)(2)(iii) specified in the transaction agreements.
-------------------------------------------------------------------------------------------------------
The related accounts for the X X
transaction, such as cash reserve
accounts or accounts established as a
form of over collateralization, are
separately maintained (e.g., with
respect to commingling of cash) as set
1122(d)(2)(iv) forth in the transaction agreements.
-------------------------------------------------------------------------------------------------------
1122-1
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Regulation AB Servicing Criteria Servicers Master Servicer, Custodian
Reference Paying Agent,
Securities
Administrator
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Each custodial account is maintained at X X
a federally insured depository
institution as set forth in the
transaction agreements. For purposes of
this criterion, "federally insured
depository institution" with respect to
a foreign financial institution means a
foreign financial institution that
meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange
1122(d)(2)(v) Act.
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Unissued checks are safeguarded so as X X
1122(d)(2)(vi) to prevent unauthorized access.
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Reconciliations are prepared on a X X
monthly basis for all asset-backed
securities related bank accounts,
including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically
accurate; (B) prepared within 30
calendar days after the bank statement
cutoff date, or such other number of
days specified in the transaction
agreements; (C) reviewed and approved
by someone other than the person who
prepared the reconciliation; and (D)
contain explanations for reconciling
items. These reconciling items are
resolved within 90 calendar days of
their original identification, or such
other number of days specified in the
1122(d)(2)(vii) transaction agreements.
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Investor Remittances and Reporting
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Reports to investors, including those X X
to be filed with the Commission, are
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the terms
specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules and
regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance
and number of Pool Assets serviced by
1122(d)(3)(i) the Servicer.
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Amounts due to investors are allocated X X
and remitted in accordance with
timeframes, distribution priority and
other terms set forth in the
1122(d)(3)(ii) transaction agreements.
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Disbursements made to an investor are X X
posted within two business days to the
Servicer's investor records, or such
other number of days specified in the
1122(d)(3)(iii) transaction agreements.
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Amounts remitted to investors per the X X
investor reports agree with cancelled
checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
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1122-2
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Regulation AB Servicing Criteria Servicers Master Servicer, Custodian
Reference Paying Agent,
Securities
Administrator
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Pool Asset Administration
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Collateral or security on pool assets X X
is maintained as required by the
transaction agreements or related pool
1122(d)(4)(i) asset documents.
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Pool assets and related documents are X X
safeguarded as required by the
1122(d)(4)(ii) transaction agreements
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Any additions, removals or X
substitutions to the asset pool are
made, reviewed and approved in
accordance with any conditions or
requirements in the transaction
1122(d)(4)(iii) agreements.
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Payments on pool assets, including any X
payoffs, made in accordance with the
related pool asset documents are posted
to the Servicer's obligor records
maintained no more than two business
days after receipt, or such other
number of days specified in the
transaction agreements, and allocated
to principal, interest or other items
(e.g., escrow) in accordance with the
1122(d)(4)(iv) related pool asset documents.
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The Servicer's records regarding the X
pool assets agree with the Servicer's
records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance.
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Changes with respect to the terms or X
status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made,
reviewed and approved by authorized personnel
in accordance with the transaction agreements
1122(d)(4)(vi) and related pool asset documents.
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Loss mitigation or recovery actions X
(e.g., forbearance plans, modifications
and deeds in lieu of foreclosure,
foreclosures and repossessions, as
applicable) are initiated, conducted
and concluded in accordance with the
timeframes or other requirements
established by the transaction
1122(d)(4)(vii) agreements.
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Records documenting collection efforts X
are maintained during the period a pool
asset is delinquent in accordance with
the transaction agreements. Such
records are maintained on at least a
monthly basis, or such other period
specified in the transaction
agreements, and describe the entity's
activities in monitoring delinquent
pool assets including, for example,
phone calls, letters and payment
rescheduling plans in cases where
delinquency is deemed temporary (e.g.,
1122(d)(4)(viii) illness or unemployment).
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Adjustments to interest rates or rates X
of return for pool assets with variable
rates are computed based on the related
1122(d)(4)(ix) pool asset documents.
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1122-3
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Regulation AB Servicing Criteria Servicers Master Servicer, Custodian
Reference Paying Agent,
Securities
Administrator
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Regarding any funds held in trust for X
an obligor (such as escrow accounts):
(A) such funds are analyzed, in
accordance with the obligor's pool
asset documents, on at least an annual
basis, or such other period specified
in the transaction agreements; (B)
interest on such funds is paid, or
credited, to obligors in accordance
with applicable pool asset documents
and state laws; and (C) such funds are
returned to the obligor within 30
calendar days of full repayment of the
related pool assets, or such other
number of days specified in the
1122(d)(4)(x) transaction agreements.
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Payments made on behalf of an obligor X
(such as tax or insurance payments) are
made on or before the related penalty
or expiration dates, as indicated on
the appropriate bills or notices for
such payments, provided that such
support has been received by the
servicer at least 30 calendar days
prior to these dates, or such other
number of days specified in the
1122(d)(4)(xi) transaction agreements.
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Any late payment penalties in connection X
with any payment to be made on behalf of an
obligor are paid from the Servicer's funds
and not charged to the obligor, unless the
late payment was due to the obligor's error
1122(d)(4)(xii) or omission.
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Disbursements made on behalf of an obligor X
are posted within two business days to the
obligor's records maintained by the servicer,
or such other number of days specified in
1122(d)(4)(xiii) the transaction agreements.
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Delinquencies, charge-offs and X
uncollectible accounts are recognized
and recorded in accordance with the
1122(d)(4)(xiv) transaction agreements.
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Any external enhancement or other X
support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation
AB, is maintained as set forth in the
1122(d)(4)(xv) transaction agreements.
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1122-4
EXHIBIT SOX
FORM OF ANNUAL CERTIFICATION
Re: The Pooling Agreement dated as of January 1, 2007 (the "Agreement"), by and
among Xxxxx Asset Securitization, Inc., as depositor (the "Depositor"),
Maia Mortgage Finance Statutory Trust, as Seller (the "Seller"), HSBC Bank
USA, National Association, as trustee (the "Trustee"), and Xxxxx Fargo
Bank, N.A., in its dual capacities as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator").
I, ________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Depositor], and the Master Servicer, the Securities
Administrator, and their officers, with the knowledge and intent that they will
rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the "Compliance Statement"), the
report on assessment of the Company's compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the Securities Administrator pursuant to the Agreement (collectively,
the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information required to
be provided by the Company under the Agreement has been provided to the
Securities Administrator;
(4) I am responsible for reviewing the activities performed by the Company as
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The Compliance Statement required to be delivered by the Company pursuant to
the Agreement, and the Servicing Assessment and Attestation Report required to
Sox-1
be provided by the Company and by any Subservicer and Subcontractor pursuant to
the Agreement, have been provided to the Securities Administrator. Any material
instances of noncompliance described in such reports have been disclosed to the
Securities Administrator. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
By: ________________________________
Sox-2
