Trustee lacks power to Act without Express Written Permission from Certificate Holders

From Ny

In re: (i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby

Every Deutsche Bank National Trusts Pooling and Servicing Agreements have this included.

9 Responses

  1. I think the title of this post is misstated. This language states that the Trustee DOES NOT HAVE TO ACT even with the Certificate Holders’ written consent unless a bond or some other surety remunerating the Trustee against the costs associated with acting is put up by the Certificate Holder.

  2. Here’s the party authorized to foreclose:

    Section 3.15 Realization upon Defaulted Mortgage Loans. Each Servicer shall use its best efforts, consistent with Accepted Servicing
    Practices, to foreclose upon

  3. heres the complete Trustee powers from my Pooling and Servicing agreeement:

    Section 8.01 Duties of the Trustee. The Trustee, before the
    occurrence of an Event of Default and after the curing of all Events of Default
    that may have occurred, shall undertake to perform such duties and only such
    duties as are specifically set forth in this Agreement. In case an Event of
    Default has occurred and remains uncured, the Trustee shall exercise such of the
    rights and powers vested in it by this Agreement, and use the same degree of
    care and skill in their exercise as a prudent person would exercise or use under
    the circumstances in the conduct of such person’s own affairs.

    The Trustee, upon receipt of all resolutions, certificates,
    statements, opinions, reports, documents, orders or other instruments furnished
    to the Trustee that are specifically required to be furnished pursuant to any
    provision of this Agreement shall examine them to determine whether they are in
    the form required by this Agreement. The Trustee shall not be responsible for
    the accuracy or content of any resolution, certificate, statement, opinion,
    report, document, order, or other instrument.

    No provision of this Agreement shall be construed to relieve the
    Trustee from liability for its own negligent action, its own negligent failure
    to act or its own willful misconduct.

    Unless an Event of Default known to the Trustee has occurred and is
    continuing:

    (a) the duties and obligations of the Trustee shall be determined
    solely by the express provisions of this Agreement, the Trustee shall not be
    liable except for the performance of the duties and obligations specifically set
    forth in this Agreement, no implied covenants or obligations shall be read into
    this Agreement against the Trustee, and the Trustee may conclusively rely, as to
    the truth of the statements and the correctness of the opinions expressed
    therein, upon any certificates or opinions furnished to the Trustee and
    conforming on their face to the requirements of this Agreement which it believed
    in good faith to be genuine and to have been duly executed by the proper
    authorities respecting any matters arising hereunder;

    (b) the Trustee shall not be liable for an error of judgment made in
    good faith by a Responsible Officer or Responsible Officers of the Trustee,
    unless it is finally proven that the Trustee was negligent in ascertaining the
    pertinent facts; and

    (c) the Trustee shall not be liable with respect to any action
    taken, suffered, or omitted to be taken by it in good faith in accordance with
    the direction of the Holders of Certificates evidencing not less than 25% of the
    Voting Rights of Certificates relating to the time, method, and place of
    conducting any proceeding for any remedy available to the Trustee, or exercising
    any trust or power conferred upon the Trustee under this Agreement.

    Section 8.02 Certain Matters Affecting the Trustee and the
    Custodians. Except as otherwise provided in Section 8.01: (a) the Trustee and
    the Custodians may request and rely upon and shall be protected in acting or
    refraining from acting upon any resolution, Officer’s Certificate, certificate
    of auditors or any other certificate, statement, instrument, opinion, report,
    notice, request, consent, order, appraisal, bond or other paper or document
    believed by it to be genuine and to have been signed or presented by the proper
    party or parties and neither the Trustee nor the Custodians shall have
    responsibility to ascertain or confirm the genuineness of any signature of any
    such party or parties;

    (b) the Trustee and the Custodians may consult with counsel,
    financial advisers or accountants and the advice of any such counsel, financial
    advisers or accountants and any Opinion of Counsel shall be full and complete
    authorization and protection in respect of any action taken or suffered or
    omitted by it hereunder in good faith and in accordance with such Opinion of
    Counsel;

    (c) neither the Trustee nor the Custodians shall be liable for any
    action taken, suffered or omitted by it in good faith and believed by it to be
    authorized or within the discretion or rights or powers conferred upon it by
    this Agreement;

    (d) the Trustee shall not be bound to make any investigation into
    the facts or matters stated in any resolution, certificate, statement,
    instrument, opinion, report, notice, request, consent, order, approval, bond or
    other paper or document, unless requested in writing to do so by the Holders of
    Certificates evidencing not less than 25% of the Voting Rights allocated to each
    Class of Certificates;

    (e) the Trustee may execute any of the trusts or powers hereunder or
    perform any duties hereunder either directly or by or through agents,
    accountants or attorneys and the Trustee shall not be responsible for any
    misconduct or negligence on the part of any agents, accountants or attorneys
    appointed with due care by it hereunder; provided, further, the Trustee shall
    not be responsible for any act or omission of any Custodian;

    (f) the Trustee shall not be required to risk or expend its own
    funds or otherwise incur any financial liability in the performance of any of
    its duties or in the exercise of any of its rights or powers hereunder if it
    shall have reasonable grounds for believing that repayment of such funds or
    adequate indemnity against such risk or liability is not assured to it;

    (g) the Trustee shall not be liable for any loss on any investment
    of funds pursuant to this Agreement;

    (h) unless a Responsible Officer of the Trustee has actual knowledge
    of the occurrence of an Event of Default, the Trustee shall not be deemed to
    have knowledge of an Event of Default, until a Responsible Officer of the
    Trustee shall have received written notice thereof; and

    (i) the Trustee shall be under no obligation to exercise any of the
    trusts, rights or powers vested in it by this Agreement or to institute, conduct
    or defend any litigation hereunder or in relation hereto at the request, order
    or direction of any of the Certificateholders, pursuant to this Agreement,
    unless such Certificateholders shall have offered to the Trustee reasonable
    security or indemnity satisfactory to the Trustee against the costs, expenses
    and liabilities which may be incurred therein or thereby.

    Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
    The recitals contained herein and in the Certificates shall be taken as the
    statements of the Depositor and the Trustee assumes no responsibility for their
    correctness. The Trustee makes no representations as to the validity or
    sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
    related document. The Trustee shall not be accountable for the use or
    application by the Depositor, the Securities Administrator or a Servicer of any
    funds paid to the Depositor, the Securities Administrator or a Servicer in
    respect of the Mortgage Loans or deposited in or withdrawn from any Collection
    Account or the Distribution Account by the Depositor, the Securities
    Administrator or a Servicer.

    The Trustee shall have no responsibility for filing or recording any
    financing or continuation statement in any public office at any time or to
    otherwise perfect or maintain the perfection of any security interest or lien
    granted to it hereunder (unless the Trustee shall have become the successor
    servicer).

    Section 8.04 Trustee May Own Certificates. The Trustee in its
    individual or any other capacity may become the owner or pledgee of Certificates
    with the same rights as it would have if it were not the Trustee.

    Section 8.05 Trustee’s Fees and Expenses. As compensation for its
    activities under this Agreement, the Trustee shall be paid its fee by the
    Securities Administrator from the Securities Administrator’s own funds pursuant
    to a separate agreement. The Trustee and any director, officer, employee, or
    agent of the Trustee shall be indemnified by the Trust Fund against any loss,
    liability, or expense (including reasonable attorney’s fees) resulting from any
    error in any tax or information return prepared by any Servicer or incurred in
    connection with any claim or legal action relating to (a) this Agreement, (b)
    the Certificates or the Interest Rate Swap Agreement, or (c) the performance of
    any of the Trustee’s duties under this Agreement (including any unreimbursed
    out-of-pocket costs resulting from a servicing transfer), the Certificates or
    the Interest Rate Swap Agreement, other than any loss, liability, or expense (i)
    resulting from any breach of any Servicer’s obligations in connection with this
    Agreement for which the related Servicer has performed its obligation to
    indemnify the Trustee pursuant to Section 6.05, (ii) resulting from any breach
    of any Responsible Party’s obligations in connection with this Agreement for
    which the related Responsible Party has performed its obligations to indemnify
    the Trustee pursuant to Section 2.03(j) or (iii) incurred because of willful
    misconduct, bad faith, or negligence in the performance of any of the Trustee’s
    duties under this Agreement. This indemnity shall survive the termination of
    this Agreement or the resignation or removal of the Trustee under this
    Agreement. Without limiting the foregoing, except as otherwise agreed upon in
    writing by the Depositor and the Trustee, and except for any expense,
    disbursement, or advance arising from the Trustee’s negligence, bad faith, or
    willful misconduct, the Trust Fund shall pay or reimburse the Trustee, for all
    reasonable expenses, disbursements, and advances incurred or made by the Trustee
    in accordance with this Agreement with respect to:

  4. In re: How can I get the agreement for my loan?

    Google it or http://www.secinfo.com

  5. google it

  6. How can I get the agreement for my loan? I have asked my servicer to tell me how to contact the master servicer to no avail. Do I have to wait until I file my lawsuit and obtain this information through discovery?

  7. Ny and Mike Tiner, is that how, out of context, you parse the pooling agreement passage?

    I cannot agree. See my comments above. I hope you’ll persuade me otherwise.

    I invite a robust discussion.

    RSVP

    Allan
    BeMoved@AOL.com

  8. Nice post, Ny.

    This reinforces my position that the nominee’s authority to foreclose has to come from up the securitization chain, regardless of the power of sale clause in the mortgage.

    I’d love to see the written consent letter from one of the certificate holders. It seems to me they would want to make sure the servicer or trustee has done everything possible to modify the loan and keep the revenue flowing in.

    Of course, if the servicer or trustee just keeps the proceeds of the sale after foreclosure…

  9. Ny, I don’t know if the headline is yours or the Blogmaster Extraordinaire of this site’s.

    When I Googled “Deutsche Bank Pooling and Servicing Agreements” I came across this example.

    From the Table of Contents of the following pooling agreement where Deutsche Bank is trustee, it appears the trustee has many enumerated powers, quite apart from the reserve power of maybe undertaking any action of Certificate holders who’re required to first indemnify the trust (as per the paragraph you cited). I’d want to review these various enumerated powers before concluding “Trustee lacks power to Act without Express Written Permission from Certificate Holders.” It appears more “Certificate Holders lack power to Act without Express Written Permission from Trustee.”

    Have you drilled down to see what are the trustee’s powers?

    Anybody else?

    Allan

    MERRILL LYNCH MORTGAGE INVESTORS, INC.
    Depositor

    WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
    Master Servicer and Securities Administrator

    WILSHIRE CREDIT CORPORATION,
    Servicer

    and

    DEUTSCHE BANK NATIONAL TRUST COMPANY,
    Trustee

    ——————————-

    POOLING AND SERVICING AGREEMENT
    Dated as of October 1, 2003

    ——————————-

    TERWIN Mortgage Trust
    Asset-Backed Certificates, Series tmts 2003-5SL

    TABLE OF CONTENTS

    ARTICLE I DEFINITIONS …………………………………………………………… 1

    ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES ……………….. 51

    SECTION 2.01. Conveyance of Mortgage Loans ……………………………………. 51
    SECTION 2.02. Acceptance by the Trustee of the Mortgage Loans …………………… 53
    SECTION 2.03. Representations, Warranties and Covenants of the Depositor …………. 54
    SECTION 2.04. Representations and Warranties of the Master Servicer;
    Representations and Warranties of the Servicer;
    Representations and Warranties of the Securities Administrator ……… 58
    SECTION 2.05. Substitutions and Repurchases of Mortgage Loans which
    are not “Qualified Mortgages” …………………………………… 61
    SECTION 2.06. Authentication and Delivery of Certificates ………………………. 61
    SECTION 2.07. REMIC Elections ……………………………………………….. 61
    SECTION 2.08. Covenants of the Master Servicer ………………………………… 64
    SECTION 2.09. Covenants of the Servicer ………………………………………. 65
    SECTION 2.10. [RESERVED] ……………………………………………………. 65
    SECTION 2.11. Permitted Activities of the Trust ……………………………….. 65
    SECTION 2.12. Qualifying Special Purpose Entity ……………………………….. 65

    ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS ……………………………. 65

    SECTION 3.01. Servicer to Service Mortgage Loans ………………………………. 65
    SECTION 3.02. Servicing and Subservicing; Enforcement of the
    Obligations of Servicer ………………………………………… 67
    SECTION 3.03. Rights of the Depositor, the Securities Administrator and
    the Trustee in Respect of the Servicer …………………………… 67
    SECTION 3.04. Securities Administrator to Act as Servicer ………………………. 67
    SECTION 3.05. Collection of Mortgage Loan Payments; Collection
    Account; Certificate Account ……………………………………. 68
    SECTION 3.06. Collection of Taxes, Assessments and Similar Items; Escrow Accounts …. 72
    SECTION 3.07. Access to Certain Documentation and Information
    Regarding the Mortgage Loans ……………………………………. 72
    SECTION 3.08. Permitted Withdrawals from the Collection Account and
    Certificate Account ……………………………………………. 72
    SECTION 3.09. Servicing Transfer Dates ……………………………………….. 74
    SECTION 3.10. [RESERVED.] …………………………………………………… 75
    SECTION 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements ………….. 75
    SECTION 3.12. Realization Upon Defaulted Mortgage Loans;
    Determination of Excess Proceeds ………………………………… 75
    SECTION 3.13. Trustee to Cooperate; Release of Mortgage Files …………………… 78
    {/Table}

    i
    {PAGE}

    TABLE OF CONTENTS
    (continued)

    {Table}
    {Caption}
    PAGE
    {S} {C}
    SECTION 3.14. Documents, Records and Funds in Possession of Servicer
    to be Held for the Trustee ……………………………………… 79
    SECTION 3.15. Servicing Compensation …………………………………………. 79
    SECTION 3.16. Access to Certain Documentation …………………………………. 80
    SECTION 3.17. Annual Statement as to Compliance ……………………………….. 80
    SECTION 3.18. Annual Independent Public Accountants’ Servicing
    Statement; Financial Statements …………………………………. 80
    SECTION 3.19. Duties and Removal of the Credit Risk Manager …………………….. 80
    SECTION 3.20. Periodic Filings ………………………………………………. 81
    SECTION 3.21. Annual Certificate by Securities Administrator ……………………. 82
    SECTION 3.22. Annual Certificate by Servicer ………………………………….. 82
    SECTION 3.23. Prepayment Penalty Reporting Requirements ………………………… 83
    SECTION 3.24. Statements to the Securities Administrator ……………………….. 83
    SECTION 3.25. Indemnification ……………………………………………….. 83
    SECTION 3.26. Nonsolicitation ……………………………………………….. 85

    ARTICLE IV DISTRIBUTIONS …………………………………………………………. 85

    SECTION 4.01. Advances ……………………………………………………… 85
    SECTION 4.02. Reduction of Servicing Compensation in Connection with
    Prepayment Interest Shortfalls ………………………………….. 86
    SECTION 4.03. Distributions on the REMIC Interests …………………………….. 86
    SECTION 4.04. Distributions …………………………………………………. 86
    SECTION 4.05. Monthly Statements to Certificateholders …………………………. 90

    ARTICLE V THE CERTIFICATES ………………………………………………………. 92

    SECTION 5.01. The Certificates ………………………………………………. 92
    SECTION 5.02. Certificate Register; Registration of Transfer and Exchange
    of Certificates ……………………………………………….. 94
    SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates …………………. 98
    SECTION 5.04. Persons Deemed Owners ………………………………………….. 98
    SECTION 5.05. Access to List of Certificateholders’ Names and Addresses ………….. 98
    SECTION 5.06. Book-Entry Certificates ………………………………………… 99
    SECTION 5.07. Notices to Depository ………………………………………….. 99
    SECTION 5.08. Definitive Certificates ………………………………………… 100
    SECTION 5.09. Maintenance of Office or Agency …………………………………. 100
    SECTION 5.10. Authenticating Agents ………………………………………….. 100

    ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SERVICER
    AND THE SECURITIES ADMINISTRATOR ………………………………………… 101

    SECTION 6.01. Respective Liabilities of the Depositor, the Master Servicer,
    the Servicer and the Securities Administrator …………………….. 101
    SECTION 6.02. Merger or Consolidation of the Depositor, the Master
    Servicer, the Servicer or the Securities Administrator …………….. 101
    SECTION 6.03. Limitation on Liability of the Depositor, the Securities
    Administrator, the Master Servicer, the Servicer and Others ………… 102
    {/Table}

    ii
    {PAGE}

    {Table}
    {Caption}
    PAGE
    {S} {C}
    SECTION 6.04. Limitation on Resignation of Servicer ……………………………. 103
    SECTION 6.05. Errors and Omissions Insurance; Fidelity Bonds ……………………. 103
    SECTION 6.06. Limitation on Resignation of the Master Servicer ………………….. 103
    SECTION 6.07. Assignment of Master Servicing ………………………………….. 104
    SECTION 6.08. Limitation Upon Liability of the Credit Risk Manager ………………. 104

    ARTICLE VII DEFAULT; TERMINATION OF SERVICER ………………………………………… 104

    SECTION 7.01. Events of Default ……………………………………………… 104
    SECTION 7.02. Securities Administrator to Act; Appointment of Successor ………….. 106
    SECTION 7.03. Notification to Certificateholders ………………………………. 107

    ARTICLE VIII CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR ……………………. 107

    SECTION 8.01. Duties of Trustee and the Securities Administrator ………………… 107
    SECTION 8.02. Certain Matters Affecting the Trustee ……………………………. 108
    SECTION 8.03. Trustee and the Securities Administrator Not Liable for
    Certificates or Mortgage Loans ………………………………….. 110
    SECTION 8.04. Trustee and the Securities Administrator May Own Certificates ………. 110
    SECTION 8.05. Trustee’s Fees and Expenses …………………………………….. 110
    SECTION 8.06. Indemnification and Expenses of Trustee ………………………….. 110
    SECTION 8.07. Eligibility Requirements for Trustee …………………………….. 111
    SECTION 8.08. Resignation and Removal of Trustee ………………………………. 111
    SECTION 8.09. Successor Trustee ……………………………………………… 112

    SECTION 8.10. Merger or Consolidation of Trustee ………………………………. 112
    SECTION 8.11. Appointment of Co-Trustee or Separate Trustee …………………….. 113
    SECTION 8.12. Tax Matters …………………………………………………… 114

    ARTICLE IX TERMINATION …………………………………………………………… 116

    SECTION 9.01. Termination upon Liquidation or Repurchase of all Mortgage Loans ……. 116
    SECTION 9.02. Final Distribution on the Certificates …………………………… 116
    SECTION 9.03. Additional Termination Requirements ……………………………… 117

    ARTICLE X MISCELLANEOUS PROVISIONS ……………………………………………….. 118

    SECTION 10.01. Amendment …………………………………………………….. 118
    SECTION 10.02. Counterparts ………………………………………………….. 120
    SECTION 10.03. Governing Law …………………………………………………. 120
    SECTION 10.04. Intention of Parties …………………………………………… 120
    SECTION 10.05. Notices ………………………………………………………. 121
    SECTION 10.06. Severability of Provisions ……………………………………… 121
    SECTION 10.07. Assignment ……………………………………………………. 122
    SECTION 10.08. Limitation on Rights of Certificateholders ……………………….. 122
    SECTION 10.09. Inspection and Audit Rights …………………………………….. 122
    SECTION 10.10. Certificates Nonassessable and Fully Paid ………………………… 123
    {/Table}

    iii
    {PAGE}

    {Table}
    {Caption}
    PAGE
    {S} {C}
    SECTION 10.11. [RESERVED] ……………………………………………………. 123
    SECTION 10.12. [RESERVED] ……………………………………………………. 123
    SECTION 10.13. [RESERVED] ……………………………………………………. 123
    SECTION 10.14. Assignment; Sales; Advance Facilities ……………………………. 123

    ARTICLE XI MASTER SERVICING OF THE MORTGAGE LOANS BY THE
    MASTER SERVICER ……………………………………………………….. 125

    SECTION 11.01. Master Servicer ……………………………………………….. 125
    SECTION 11.02. Monitoring of Interim Servicers …………………………………. 126
    SECTION 11.03. Fidelity Bond …………………………………………………. 127
    SECTION 11.04. Powers to Act; Procedures ………………………………………. 127
    SECTION 11.05. Due-on-Sale Clauses; Assumption Agreements ……………………….. 128
    SECTION 11.06. Master Servicing of Mortgage Loans Prior to Servicing Transfer Dates … 128
    SECTION 11.07. Documents, Records and Funds in Possession of Master
    Servicer to be Held for Trustee …………………………………. 129
    SECTION 11.08. Standard Hazard Insurance and Flood Insurance Policies …………….. 129
    SECTION 11.09. Presentment of Claims and Collection of Proceeds ………………….. 129
    SECTION 11.10. Trustee to Retain Possession of Certain Insurance Policies
    and Documents …………………………………………………. 130
    SECTION 11.11. Realization Upon Defaulted Mortgage Loans ………………………… 130
    SECTION 11.12. REO Property ………………………………………………….. 130
    SECTION 11.13. Annual Statement as to Compliance ……………………………….. 131
    SECTION 11.14. Annual Independent Public Accountants’ Servicing
    Statement; Financial Statements …………………………………. 131
    SECTION 11.15. Obligation of the Master Servicer in Respect of Certain
    Prepayment Interest Shortfalls ………………………………….. 131
    SECTION 11.16. Collection Account …………………………………………….. 131
    SECTION 11.17. Obligation of the Master Servicer in Respect of Certain Advances …… 131
    SECTION 11.18. Termination of the Master Servicer ………………………………. 131
    {/Table}

    {Table}
    {S} {C}
    EXHIBIT A FORMS OF CERTIFICATES
    EXHIBIT B MORTGAGE LOAN SCHEDULE
    EXHIBIT C SCHEDULE OF MORTGAGE LOANS WITH NO PREPAYMENT ENFORCEMENT
    EXHIBIT D FORM OF TRUSTEE CERTIFICATION
    EXHIBIT E-1 FORM OF TRANSFEREE’S LETTER AND AFFIDAVIT
    EXHIBIT E-2 FORM OF TRANSFEROR’S AFFIDAVIT
    EXHIBIT F FORM OF TRANSFEROR CERTIFICATE
    EXHIBIT G FORM OF INVESTMENT LETTER
    EXHIBIT H FORM OF RULE 144A LETTER
    EXHIBIT I REQUEST FOR RELEASE
    EXHIBIT J LIST OF INTERIM SERVICING AGREEMENTS
    EXHIBIT K FORM OF OFFICER’S CERTIFICATE OF SECURITIES ADMINISTRATOR
    EXHIBIT L FORM OF OFFICER’S CERTIFICATE OF SERVICER
    EXHIBIT M FORM OF OFFICER’S CERTIFICATE WITH RESPECT TO PREPAYMENTS
    {/Table}

    iv

    {PAGE}

    POOLING AND SERVICING AGREEMENT, dated as of October 1, 2003, among
    MERRILL LYNCH MORTGAGE INVESTORS, INC., a Delaware corporation, as depositor
    (the “Depositor”), WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national
    banking association, as master servicer (the “Master Servicer”) and securities
    administrator (the “Securities Administrator”), WILSHIRE CREDIT CORPORATION, a
    Nevada corporation, as servicer (the “Servicer”) and DEUTSCHE BANK NATIONAL
    TRUST COMPANY, a national banking association, as trustee (the “Trustee”).

    The Depositor is the owner of the Trust Fund that is hereby conveyed to
    the Trustee in return for the Certificates. It is intended that for federal
    income tax purposes the Trust Fund will include (i) four real estate mortgage
    investment conduits (the “Lower Tier REMIC,” “Middle Tier REMIC 1,” “Middle Tier
    REMIC 2” and the “Upper Tier REMIC”), (ii) the regular interests in the Lower
    Tier REMIC, Middle Tier REMIC 1, Middle Tier REMIC 2 and the Upper Tier REMIC,
    (iii) the rights to receive Prepayment Penalties and (iv) the grantor trusts
    described in Section 2.07 hereof. The Lower Tier REMIC will consist of all of
    the assets constituting the Trust Fund (other than the assets described in
    clauses (ii), (iii) and (iv) above) and will be evidenced by the Lower Tier
    REMIC Regular Interests (which will be uncertificated and will represent the
    “regular interests” in the Lower Tier REMIC) and the Class LTR Interest as the
    single “residual interest” in the Lower Tier REMIC. The Trustee will hold the
    Lower Tier REMIC Regular Interests. Middle Tier REMIC 1 will consist of the
    Lower Tier REMIC Regular Interests and will be evidenced by the Middle Tier
    REMIC 1 Regular Interests (which will be uncertificated and will represent the
    “regular interests” in Middle Tier REMIC 1) and the Class MT1R Interest as the
    single “residual interest” in Middle Tier REMIC 1. The Trustee will hold the
    Middle Tier REMIC 1 Regular Interests. Middle Tier REMIC 2 will consist of the
    Middle Tier REMIC 1 Regular Interests (other than the Middle Tier REMIC 1 IO
    Interests) and will be evidenced by the Middle Tier REMIC 2 Regular Interests
    (which will be uncertificated and will represent the “regular interests” in
    Middle Tier REMIC 2) and the Class MT2R Interest as the single “residual
    interest” in Middle Tier REMIC 2. The Trustee will hold the Middle Tier REMIC 2
    Regular Interests. The Upper Tier REMIC will consist of the Middle Tier REMIC 2
    Regular Interests and the Middle Tier REMIC 1 IO Interests and will be evidenced
    by the Upper Tier REMIC Regular Interests (which will represent the “regular
    interests” in the Upper Tier REMIC) and the Residual Interest as the single
    “residual interest” in the Upper Tier REMIC. The Class R Certificate will
    represent beneficial ownership of the Class LTR Interest, the Class MT1R
    Interest, the Class MT2R Interest and the Residual Interest. The “latest
    possible maturity date” for federal income tax purposes of all interests created
    hereby will be the Latest Possible Maturity Date.

    All covenants and agreements made by the Seller in the Sale Agreement
    and by the Depositor and the Trustee herein with respect to the Mortgage Loans
    and the other property constituting the Trust Fund are for the benefit of the
    Holders from time to time of the Certificates.

    In consideration of the mutual agreements herein contained, the
    Depositor, the Master Servicer, the Servicer, the Securities Administrator and
    the Trustee hereby agree as follows:

    ARTICLE I

    DEFINITIONS

    Whenever used in this Agreement, the following words and phrases,
    unless the context otherwise requires, shall have the following meanings:

    {PAGE}

    Accepted Master Servicing Practices: With respect to any Mortgage Loan,
    as applicable, either (x) those customary mortgage 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 (except in its capacity as successor to the Servicer), or (y) as
    provided in Section 11.01 hereof, but in no event below the standard set forth
    in clause (x).

    Accepted Servicing Practices: The Servicer’s normal servicing
    practices, which will conform to the mortgage servicing practices of prudent
    mortgage lending institutions which service for their own account mortgage loans
    of the same type as the Mortgages Loans in the jurisdictions in which the
    related Mortgaged Properties are located.

    Accrual Period: With respect to the Certificates (other than the Class
    A-X and Class B Certificates) and any Distribution Date, the period commencing
    on the immediately preceding Distribution Date (or, in the case of the first
    Distribution Date, the Closing Date) and ending on the day immediately preceding
    such Distribution Date. With respect to the Class A-X and Class B Certificates
    and any Distribution Date, the calendar month immediately preceding the month in
    which such Distribution Date occurs. All calculations of interest on the
    Certificates (other than the Class A-X and Class B Certificates) will be made on
    the basis of the actual number of days elapsed in the related Accrual Period and
    a 360 day year. All calculations of interest on the Class A-X and Class B
    Certificates will be made on the basis of a 360-day year consisting of twelve
    30-day months. The Accrual Period for each Lower Tier REMIC Regular Interest,
    each Middle Tier REMIC 1 Regular Interest and each Middle Tier REMIC 2 Regular
    Interest for any Distribution Date will be the calendar month immediately
    preceding the month in which such Distribution Date occurs. All calculations of
    interest on the Lower Tier REMIC Regular Interests, the Middle Tier REMIC 1
    Regular Interests and the Middle Tier REMIC 2 Regular Interests will be made on
    the basis of a 360-day year consisting of twelve 30-day months.

    Adjusted Net WAC: As of any Distribution Date, a per annum rate equal
    to the weighted average rate of the Middle Tier REMIC 1 Regular Interests. With
    respect to the Class A-1, Class M and Class R Certificates, such rate is
    multiplied by 30 and divided by the actual number of days in the related Accrual
    Period.

    Advance: The aggregate of the advances required to be made by the
    Servicer with respect to any Distribution Date pursuant to Section 4.01, the
    amount of any such advances being equal to the sum of the aggregate of payments
    of principal and interest (net of the Servicing Fee Rate) on the Mortgage Loans
    that were due during the applicable Due Period and not received as of the close
    of business on the related Determination Date, less the aggregate amount of any
    such Delinquent payments that the Servicer has determined would constitute a
    Non-Recoverable Advance were an advance to be made with respect thereto;
    provided, however, that with respect to any Mortgage Loan that is 150 days
    delinquent or more (whether or not the Mortgage Loan has been converted to an
    REO Property), there will be no obligation to make advances and, provided
    further, however, that with respect to any Mortgage Loan that has been converted
    to an REO Property which is less than 150 days delinquent, the obligation to
    make Advances shall only be to payments of interest.

    Advance Facility: A financing or other facility as described in
    Section 10.14(a).

    Advance Facility Notice: As defined in Section 10.14(b).

    Advance Financing Person: As defined in Section 10.14(a).

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